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.

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.

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.

A fiery crash on I-95 at Richmond Hill near Savannah in Chatham County on July 26^th caused the wrongful death of a woman and sent her husband to a specialized burn unit in Augusta. It appears all too typical of other truck accident cases we have handled throughout Georgia, including those in the Savannah area and along I-95 and I-16.

According to news reports, as a southbound tractor trailer approached the exit the driver moved from the center lane to the right lane. Approaching a line of cars slowed in traffic, the truck driver then tried to get back into the middle lane when struck another tractor-trailer, causing it to spin out of control and into the line of cars waiting to exit. The tractor-trailer struck two SUVs. One SUV was thrown over a concrete barrier onto railroad tracks.

The second SUV was pinned against a concrete barrier over the CSX railroad tracks and burst into flames. The occupants, a husband and wife, were caught in their burning vehicle. The wife was killed and the husband was badly burned and transported to a specialized burn unit in Augusta.

As with most fatal traffic crashes on Georgia highways, the Georgia State Patrol Specialized Collision Reconstruction Team (SCRT) is undertaking a painstaking reconstruction of the chain reaction collision. While news reports have not identified the cause of the fatal truck crash, experience in handling many tractor trailer accident cases over the years suggests likely factors, all of which are related to failure of safety management in trucking companies. Truck driver fatigue and distraction are common factors.

Safety management by trucking companies

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Most often when commercial truck drivers crash due to fatigue, the root cause analysis leads back to corporate management issues as the motor carrier had a duty under the Federal Motor Carrier Safety Regulations to require observance by their drivers of safety rules. Trucking companies are required to manage safety so as to require their drivers to follow the rules. The Federal Motor Carrier Safety Regulations at 49 C.F.R. §390.11 provides: “Whenever . . . a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition.” In addition, “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.” 49 C.F.R. §390.13.

Speed

Speed too fast for conditions is almost always a factor when a tractor trailer crashes into a line of vehicles slowed by traffic conditions or in a construction zone. Excessive speed is involved in 58% of crashes and attributable to the large truck in 65% of those. I suspect that is underestimated because the data comes from police reports. The SCRT unit will gather data from electronic control module and possibly other electronic data sources in the tractor trailers and possibly other vehicle to show the speed, braking and deceleration in each vehicle.

Driver impairment

One of the most important and most frequently violated safety rules for truck drivers, as to which motor carriers have a duty to enforce among their drivers, is one related to impaired driving. “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. . . .” 49 C.F.R. §392.3.

News reports are silent on possible fatigue factors in this crash, but among those we see most often are violation of work hours rules and untreated sleep apnea.

Truck driver fatigue

Hard working truckers tend to drive too long and sleep too little, with outcomes that are predictable. They have “hours of service limits” and are required to log their time driving, on duty but not driving, off duty and in the sleeper berth. The current limits are 11 hours driving out of 14 hours on duty, followed by at least 10 hours off duty, up to 60 hours in a week or 70 hours in an 8 day period on the road. But they can under certain circumstances restart the clock and get behind the wheel. That provision can allow a truck driver to drive up to 81 hours per week.

As many as one-third of truck drivers admit to falsifying their hours of service logs, often under pressure from employers and shippers to get the job done quickly, to meet financial incentives, or simply to make more money. In a truck crash we are handling at I-16 and I-95, we have a video of the truck driver at the scene saying, “I must have went to sleep.”

While there is no easy scientific test to determine when fatigue contributes to the cause of a crash, but we can often peel away the layers of deception through detailed review of trip records. Once after deconstructing his trip records, a trucker in Ohio admitted to me in deposition that he had been driving 20 of the previous 24 hours, had driven from Ohio to Atlanta, back to Ohio, and after a one hour nap started driving back to Atlanta. He ran over a family and killed their son. In another case, a truck driver actually admitted on police video at the crash scene, “I must have went to sleep.”

Sleep apnea

There is nothing in the news reports to suggest whether or not fatigue related to sleep apnea may have been a factor in this crash, but it is something we look into when appropriate.

The US Department of Transportation Medical Review Board has recommended that individuals with a Body Mass Index (BMI) over 40 “should be referred for diagnostic sleep evaluations.” The National Transportation Safety Board has reported, “Drivers with sleep apnea are seven times more likely to be involved in an automobile accident than those without sleep apnea” Drivers with undiagnosed obstructive sleep apnea who are not receiving proper treatment are prone to making critical mistakes or even fall asleep while driving due to their fatigue.”  The Federal Motor Carrier Safety Administration has warned truck drivers that, “Untreated sleep apnea can make it difficult for you to stay awake, focus your eyes, and react quickly while driving. In general, studies show that people with untreated sleep apnea have an increased risk of being involved in a fatigue-related motor vehicle crash.”

In one fatal truck crash we have handled, just a cursory review of the driver qualification file in the trucking company’s records revealed that the truck driver was “morbidly obese” with a BMI of 41.5, putting him severely at risk of obstructive sleep apnea. There was nothing in the records to indicate any evaluation or treatment for sleep apnea. After crashing into a clearly visible line of stopped traffic at a red light, he admitted to an officer that he was fatigued four and one-half hours after reporting for work.

Driver distraction

While there is nothing in news reports to indicate whether the truck driver was distracted, that is a common factor we investigate in major truck crashes. Cell phones, texting, fiddling with GPS units, food and beverages are among the common causes of driver distraction leading to crashes.

We often fight with trucking companies’ insurers over production and forensic download of data from smart phones that law enforcement typically does not attempt to access. A cell phone download may reveal vice and text connections and use of other communications apps such as Facetime, Facebook Messenger, etc. In addition, GPS data from the cell phone may be compared with electronic data from the truck regarding locations, speed and activity of the truck, and patterns and practices that may cast light upon the root cause of the crash. Cell phone data may reveal the truck driver’s off-duty activities contributing to dangerous fatigue on the job. For example, a driver was working a second job in his off hours which would have contributed to accumulated fatigue, chronic sleep deprivation, and irregular work and rest cycles which could likely lead to the inevitable result of a catastrophic truck crash.

Direct solicitation of accident victims

Victims in such crashes should be aware that any lawyer who directly solicits them is violating both a State Bar ethics rule punishable by disbarment and a Georgia criminal law.

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Ken Shigley‘s “singular focus has been filing lawsuits for people hit by trucks.” Atlanta Journal-Constitution, May 7, 2018. He 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. Work on all these types of cases requires expertise in insurance law.

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.

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.

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.

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.

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.

12. Video recording of defendant depositions.

A party may videotape any deposition upon notice that it will be so recorded. OCGA 9-11-30 (b)(4); FRCP 30 (b)(3). A deposition of a party may be used by any adverse party for any purpose, including substantive evidence, without any foundation that the party is unavailable to testify, including reading or playing video of portions in the case in chief, not merely for impeachment. OCGA § 9-11-32(a); Fed.R.Civ.P. 32(a)(2); Griffin v. Bankston, 295 Ga.App. 387, 391, 671 S.E.2d 873, 877 (2008).  See also,   State Farm Mut. Auto. Ins. Co. v. Lincow, 715 F.Supp.2d 617, (E.D.Pa.,2010); Northfield Ins. Co. v. Royal Surplus Lines Ins. Co., 2003 WL 25948971 (C.D.Cal.,2003); In re McLaren, 136 B.R. 705 (Bkrtcy.N.D.Ohio,1992); Roark v. Rydell, 174 Ohio App.3d 186, 881 N.E.2d 333 (Ohio App. 1 Dist., 2007); Devenyns v. Hartig, 983 P.2d 63 (Colo.App.,1998); State v Metz, 241 A.D.2d 192, 671 N.Y.S.2d 79 (N.Y.A.D. 1 Dept.,1998); Matter of the Adoption of N.A.P., 23 Kan.App.2d 257, 930 P.2d 609 (Kan.App.,1996).

Therefore, in any substantial case give notice of video recording of defendant depositions, and request synchronization of stenographic transcript and video in DVT format that may be easily edited on your computer. Be extremely specific in communicating to the court reporter and videographer the request for synchronized video and transcript. Not less than a month before trial, prepare video clips of adverse parties to play in the case in chief at trial.

11. Propose a stipulation that attorneys issue deposition subpoenas.

While federal law authorizes attorneys as officers of the court to issue subpoenas on standard forms, current Georgia law only allows deposition subpoenas issued and signed by counsel if there has been a stipulation of counsel pursuant to OCGA 9-11-45. Otherwise, subpoenas must be obtained from the Clerk. Propose such a stipulation early in the case in order to avoid a mad scramble to get subpoenas from the clerk for depositions or for trial.

Note that the need for such a stipulation will be eliminated on January 1, 2013, the effective date of the new Evidence Code. The new OCGA 24-13-21(d) will provide that “An attorney who is counsel of record in a proceeding may issue and sign a subpoena obtained by electronic or other means from the clerk of court as an officer of a court for any deposition, hearing, or trial held in conjunction with such proceeding.”

7. Draft jury instructions early.

Judges are understandably most comfortable using pattern jury instructions. Prior to drafting the complaint and discovery, compile all the applicable pattern jury instructions and prepare a preliminary draft of additional charges not covered by the pattern.  Research statutes and case law rather than simply relying solely upon patterns and forms. Then develop pleadings, interrogatories and deposition questions with the probable jury instructions in mind.

6. Investigate the case yourself.

Use Open Records Act requests to obtain all police photos and dashcam video,  and 911 logs and recordings. As soon as practicable, visit the scene of the incident in person and interview the reporting officer. When appropriate meet with the officer at the scene. Go see the vehicles in the junk yard. Get good photographs, though you may need to have someone else take the photos, hold the measuring tape, etc.  Interview witnesses. Consider use of investigators, but don’t rely solely upon them.

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5 . Social Media.

Social media can be “self surveillance” that hands a loaded gun to the other side in litigation. Discuss with a potential client whether she might consider taking down any Facebook, MySpace, YouTube or other social media sites prior to engaging you for the case. Alternatively, the client should be warned to expect the other side to find and use anything that is online, so maximum caution should be exercised. For example, Facebook users should be extremely careful about selecting friend requests only from people who are close friends offline, disable “public search,” remove all activities and interests from the profile, set the maximum possible privacy settings, take down or “untag” any photos other than a single head shot, and avoid any discussion of the case or injury in any social media posting and emails (except confidential attorney-client communication).

At the same time, immediately do a Google search on the opposing parties and download and print color hard copies of whatever may be found. However, do not use subterfuge to “friend” anyone in order to gain access to information, as that would violate Rule of Professional Conduct 8.4(c) which provides that a lawyer shall “not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” See, e.g., Professional Guidance Committee of the Philadelphia Bar Association [Opinion 2009-02].

The Stored Communications Act, 18 U.S.C. §§ 2701-11, includes criminal and civil sanctions for unauthorized access to stored communications, and has been applied in cases involving access to social media.  See, e.g., Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J.)(employer access to employee’s social media tortious invasion of privacy and violations of the SCA); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 880 (9th Cir. 2002)( unauthorized access to his private online bulletin postings under false pretenses).

Whether or not social media postings are removed or placed behind privacy screens, they will likely still reside in the corporation’s computers and may be discoverable. There is a growing body of law on discoverability of social media postings in relation to the Stored Communications Act, 18 U.S.C.A. § 2702(a)(1), (2). See, e.g., Thomas I. Barnett and Kenneth R. Shear, 1 Internet Law and Practice § 10:12, The social media networks: Issues in communications disclosure and preservation (2011); Evan E. North, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279-1309 (2010); McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. C.P. 2010)(postings discoverable despite privacy settings; Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. 2009)(approved subpoena seeking plaintiff’s social media postings);  Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650 (Sup 2010)(social media postings discoverable). Contra, Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010)(held that under Stored Communications Act, social media communications could not be subpoenaed for use in civil lawsuits).

2. Invest in the interview.

An attorney’s commitment to a serious contingent fee case is a major investment of time and resources. Do your due diligence as you would with any major investment. Set aside enough time to get acquainted with the potential client, develop trust, and probe for information about the event, damages, personal history (education, work, medical, claims, criminal history, etc.) While the lawyer’s office is more convenient in many ways, consider meeting at the client’s home; it is an information rich environment.   While a screening interview can be done by phone, allow 3 or 4 hours for the initial face to face interview. Ask the prospective client to bring along, insofar as possible, the accident report, photos of vehicles, medical and auto insurance policies, any claim correspondence and medical bills and records.

Then conduct an inductive, empathic interview to gather broad and deep information. If you don’t find the case meritorious or don’t find the prospective client likeable or believable, neither will the jury.  Better to cut your losses after a long initial interview than to invest hundreds of hours and tens of thousands of dollars in a losing case.

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Bar committee OKs rule change
Public defenders in same circuit would be allowed to represent co-defendants under proposed amendment

The State Bar of Georgia’s Disciplinary Rules and Procedures Committee on Wednesday unanimously approved a rule change that would allow public defenders in the same circuit to represent co-defendants unless specific conflicts of interest are identified.

The proposed amendment to the Georgia Rules of Professional Conduct on imputed disqualification, also known as Rule 1.10, states: “(d) A lawyer representing a client of a public defender office shall not be disqualified under this rule because of the representation by the office of another client in the same or a substantially related matter unless there is a conflict as determined by Rules 1.7, 1.8(f) or 1.9,” which determine conflicts of interest, according to Bar President Kenneth L. Shigley.

Backers of the amendment hope it serves as a compromise in a debate that has burned hot since April 2010, when the bar approved a formal advisory opinion prohibiting intra-circuit representation of indigent criminal co-defendants. Critics of that opinion, which is pending review by the state Supreme Court, said it would result in higher costs for the cash-strapped indigent defense system as more expensive outside lawyers would need to be hired to resolve conflicts.

But some lawyers questioned whether the proposed amendment would have any significant effect.

On Wednesday, Shigley said the new rules change allowing intracircuit representation of co-defendants should help public defender offices handling cases with multiple defendants where there is only a potential conflict.”The proposed amendment to Rule of Professional Conduct 1.10 is a measured, moderate approach to representation of multiple defendants in the public defender context,” Shigley said in a written statement. “It recognizes the need for practical flexibility in administration of the statewide public defender system, without diminishing lawyers’ ethical standards or defendants’ rights to vigorous, conflict-free representation.”

. . . .

The proposed amendment will go to the bar’s Executive Committee, which is scheduled to meet on Oct. 6 in Macon. Then, it would need the approval of the bar’s Board of Governors, which will convene on Oct. 29 at Jekyll Island, and finally the state Supreme Court before going into effect.

The state high court agreed to review the formal advisory opinion last year, but in August it delayed any decision until January. Members of the bar, as well as the Georgia Public Defender Standards Council, began publicly discussing a rules change that would have exempted public defenders from the conflict rules applied to private firms late this summer.

Georgia Public Defender Standards Council Director W. Travis Sakrison spoke against the formal advisory opinion during Wednesday’s hearing of the Disciplinary Rules and Procedures Committee.

According to Sakrison, the formal advisory opinion would require all public defender offices to divest themselves immediately of all co-defendants in cases where there may be a potential conflict. That rule would balloon the number of conflict cases and drain the public defender system of resources, he said. The estimated cost of finding new conflict counsel would have required the GPDSC to ask the Legislature for millions more in its budget, he said.

Instead, many circuit public defenders wanted their offices to have the ability to represent co-defendants up until the point an actual conflict arose, as long as proper ethical screens, such as separate computers and filing areas, were in place the entire time. And then, if there were an actual conflict, the public defender office could retain one of the co-defendants.

But supporters of the formal advisory opinion said the opinion supported the existing rules, which already outline conflicts and are meant to ensure adequate representation of indigent criminal defendants—a statement the Disciplinary Rules and Procedures Committee chairman, John G. Haubenreich, agreed with on Wednesday.” . . . .

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It was a Sunday in December nearly 40 years ago at my grandparents’ rural home at Mentone, Ala., a bucolic spot best known for summer camps, midway between Chattanooga and Gadsden on the hundred-mile long plateau that is Lookout Mountain. Within a mile radius were the simple houses, church, school, woods, fields and country graveyards which helped define “home” for several generations of a family steeped in a morality so strict that, for some of us, it proved more aspirational than operational.

At the “children’s table,” off the kitchen with my cousins, I could faintly hear the conversation of our elders at the “grownup table” in the dining room. My father said something about “Ken” and “law school,” as he told of the path I hoped to pursue after college. The response to his announcement was strangely muted. He then explained how, similar to ministry or teaching, law could be a calling too. My grandfather, the family patriarch who served a lifetime as a minister and builder all over Alabama, and who I remember as the image of rectitude, both in the pulpit on Sundays and in a pressed work shirt and securely tucked-in tie on construction sites, made some quiet expression of resigned acceptance.

Ours was a family of preachers, teachers and builders, upright, hard-working and devout country people. Not only had there never been a lawyer in the family in living memory, but so far as I knew then, no one in the extended family had ever considered a legal career.1 We lived in Mentone until I was 12, across a pasture from the grandparents who helped mold me. Many happy hours were spent roaming the woods and catching tadpoles in a cattle pond, and I learned to shoot a rifle before I learned to ride a bike. When it came time to start school, my parents took me to work with them, 10 miles away to Menlo, Ga. Menlo was an idyllic Mayberry where my father was a school principal who wielded an effective “board of education” and my mother was a teacher and librarian who strongly encouraged memorization of inspirational poems. By the time I entered high school, we migrated to the “big city” of Douglasville, Ga.—then a country town of about 5,000 on the route of an unfinished I-20—where at night on a rural hilltop restless teenagers could see the lights of Atlanta twinkling in the distance. Visits home to the mountain grew less and less frequent.

When the remains of the feast were cleared away, and the womenfolk were clattering dishes and talking in the kitchen, Uncle Leonard took me aside. He was the only one of his generation who seldom left the mountain for more than a few days, except to pick up a piece of German shrapnel that he would carry in his body all his life. Strongly self-reliant, he lived within sight of his birthplace, building and remodeling mountain homes for city folks, while his siblings pursued degrees and careers far from their roots. In some ways he was the best of the bunch.

With a look of profound concern on his weathered face, Uncle Leonard jabbed a work-scarred finger into my chest and demanded, “Kenneth, don’t you know that it’s impossible for a lawyer to go to heaven?” In retrospect, I realize his challenge was based upon a combination of tough love and his flawed interpretation of a few verses in the King James Version of the Bible.2 In his dealings down at the county seat, including service as a part-time constable and a competitive Republican bid for sheriff when the Democratic nomination was still tantamount to election, he apparently had seen no reason to doubt his opinion.

With the cockiness of youth, I laughed off my uncle’s warning. What could this good man who I had looked up to all my life, but who left school at 16 and earned his living through hard work with a hammer and saw, possibly know about the moral and spiritual health of the profession to which I aspired? Nonetheless, I silently vowed to prove him wrong. In the four decades since, I have often recalled his words, especially on those occasions when I strayed across some line, either hazy or clear, that I should not have crossed. Moral compromises are by no means unique to the legal profession, but deeply flawed human nature being what it is, none of us are immune from temptation.

Uncle Leonard’s admonition, while delivered in the most literal, fundamentalist terms, may allegorically reveal concerns about the soul of our profession. But it also contains a hidden kernel of hope when we reflect upon our lives and motivations. Even before the economic slump of recent years, many lawyers were disenchanted with their work, unhappy with their workaholic lifestyle, and questioning the wisdom of their career choices. As Justice Sandra Day O’Connor observed in a speech a few years ago:

[L]awyers, as a group, [are] a profoundly unhappy lot. . . . Attorneys are more than three times as likely as non-lawyers to suffer from depression, and they are significantly more apt to develop a drug dependence, to get divorced, or to contemplate suicide. Lawyers suffer from stress-related diseases, such as ulcers, coronary artery disease, and hypertension, at rates well above average.3

The stress lawyers experience may, in part, come from pressure to live two separate lives as a human being and a lawyer, and to prevent their overlap.4 In Dante’s Inferno, just inside the gates of hell were the morally indifferent, those “passionless people who lived without praise or blame, and thus never truly lived.”5 Dante’s “passionless people” may remind us of the compartmentalization that is all too tempting in the legal profession. 6 Contemporary law practice can induce some lawyers to hide behind a veneer of cynicism or sarcasm, evading the complications of humanity in order to live in the comfortable zone between profit maximization and the avoidance of sanctions.7 This overly rationalized zone has been described as an “ethical winter,” or a “hibernation of the soul,” which can result in cynicism and even self-contempt.8

A novelist wrote that “[a] profession is like a great snake that wraps itself around you. Once you are wrapped up, you are in a slow fight for the rest of your life, and the lightness of youth leaves you.” Of a lawyer he wrote, “I saw how greatly he suffered the requirement of being clever. It separated him from his soul, and it didn’t get him anything other than a living.”9 I recently witnessed this while dealing with a cold, humorless junior shareholder at a distant office of a huge national law firm who clearly conveyed the impression that he was a heartless automaton, devoid of humanity or compassion. Lawyers seeking to retain their souls and some remnant of the “lightness of youth” after decades of practice must seek not only to avoid punishment by following the disciplinary rules of conduct, but also to escape such cold indifference by reuniting our sense of humanity with our profession and, ultimately, recognizing the law as a passionate vocation.10

For too many of us, the law has become a mere instrument for attaining economic or social objectives; we have forgotten that “law is rooted in something bigger than the people who hand it down, that law is rooted in history and in the moral order of the universe.”11 I have been guilty of that too. In more prosperous days, high incomes often masked concerns about this. When investment banks and the most prestigious law firms could offer top law school graduates starting salaries in the nosebleed range, and their rising tide lifted our smaller boats, we could more easily rationalize that at least we were well paid. However, as the latest recession led to layoffs and downsizing in great firms and the decimation of once thriving practice areas, middle class individuals and small businesses, unable to pay customary attorney fees, turned to selfhelp resources. As a result, most of us experienced falling revenue, an ebbing tide found many of us struggling to keep up appearances of our customary success.

Rediscovering passion for service in the legal profession is an essential element in enduring hard times and a necessary step in recognizing the potential for personal fulfillment that a legal career offers. Those of us who bear the scars of long legal careers, however, know all too well how easy it is to lose sight of the intrinsic values of our work when we are laboring in the muddy trenches of the law for long hours day by day, besieged with phone calls and e-mails, stressed out about deadlines and seemingly insoluble conflicts, struggling to meet billing requirements, cover overhead, make payroll, feed all the mouths we are expected to feed, and reserve some personal space in our lives.

Viewed with the right perspective, the law can offer some of the best opportunities to help people who are hurting and to temper and resolve human conflict.12 If we view our professional role as a high calling, as a place where our deep gladness meets the world’s deep hunger, then we may find in the act of helping people solve their problems a value that transcends our fluctuating material rewards.13 Blooming where we are planted, we may find that we are called to serve as instruments of justice and love—sometimes love as tough as Uncle Leonard’s—in whatever workday roles we hold. Prosecutors and defense lawyers are called not only to serve the positions of state and defendant, but to help assure that wrongdoers—and only wrongdoers—are punished, and that punishment justly fits the offense and the offender. Judges are called to firmly, fairly and impartially administer justice in their communities in a manner that respects the humanity of all who come before them. Personal injury lawyers can enforce responsibility and accountability of those who carelessly cause harm, while helping clients regain the dignity and independence that has been diminished by injury or the untimely death of a family member. Insurance defense lawyers may protect corporate resources from baseless claims, while encouraging their clients to fairly resolve cases that have merit. Estate planners assist and encourage their clients’ stewardship and love for their families and communities. Corporate lawyers may see themselves as called to structure entities and transactions that help create jobs and economic growth. Intellectual property lawyers safeguard the fruit of innovation that is essential to progress and prosperity. Real estate lawyers may be called to help families, businesses and communities secure a physical environment that promotes growth and productivity. Small town lawyers practicing “front door law”—whatever comes in the front door—may have the best opportunities to positively impact the lives of both their clients and their communities.14 The potential examples are as varied as the legal profession itself.

Compared to the infinite scale and complexity of the universe, our lives seem trivial and limited. But in this snippet of time and space we occupy, we are called to interpret the moral order of creation into pragmatic, common sense legal solutions for the messy problems presented to us, and to use our skills to temper the chaos to which human nature gives rise.15 Being able to recognize this calling and our peace-making and problem-solving abilities may allow us to regain, and live with, a sense of passion and purpose.

Through it all, we should be thankful for the opportunity to work and serve in the law, rekindling a more mature and probably less self-important version of whatever first inspired us to pursue legal careers. Laying aside elitist pretensions of professional arrogance, we can pursue more conscientious and effective relationships with clients and colleagues. 16 In the words of the prophet Micah, we should seek to “do justice, love kindness and walk humbly with our God.”17 In so doing, we should prudently seek practical and effective ways in which we can no longer conform to the flawed patterns of this world, and can instead be transformed by the renewal of our minds.18

Perhaps more in lean years than in fat years, we in the legal profession have the opportunity to serve justice, to renew our commitment to the Constitution’s promise of justice for all and to strengthen the best traditions of the justice system as the essential infrastructure of liberty and prosperity. In our brief time, we must do our part to restore the traditional leadership role of the legal profession as a pillar of our communities, our state and country, and in so doing, help to reverse national decline and usher in what Lincoln called “a new birth of freedom.”19

When I return to Mentone and walk among the graves of strong forbearers who followed their own callings—my great-grandfather the builder and farmer who helped found a church and a school, my grandfather the minister and builder, my father the educator, and Uncle Leonard who issued that stark warning—I pray that before the end I might prove worthy of them and of the calling I follow in the law.

• He was flown to Strong Memorial Hospital at Rochester, NY.  While I am in Atlanta, my daughter attends the Rochester Institute of Technology and has been treated at Strong Memorial.
• Most of my law practice focuses on tractor trailer wrecks, including representation of truck drivers who are injured.
• I am all too personally  familiar with the surreal pain of severe burn injuries.  This truck driver and his family are unlikely to be prepared by anything in life for that experience.  No amount of morphine is adequate. But this too shall pass, that which does not kill us makes us stronger, and the mind is virtually incapable of remembering the pain itself.

According to media reports, the case is under investigation.  I am interested to learn whether there was a malfunction of the gas station’s fuel pump that led to a spill, and what caused ignition of diesel fuel which normally is less volatile than gasoline.

Graft donor sites are often even more painful than burn sites.  The pain is both burn and donor locations may be absolutely surreal, beyond the capacity of words to describe. Donor sites may take longer to return to something normal coloration. The grafted sites, however, may always appear somewhat scarred and discolored with traces of the graft mesh pattern.

Now, according to a report on CNN, researchers are developing a technique to use inkjet printer technology to “print” live skin cells on a burn injury. It may be five years from clinical use.

A skin “bio-printer” was developed by modifying a standard store-bought printer by adding a three-dimensional “elevator” that builds on damaged tissue with fresh layers of healthy skin.

Skin-printing involves several steps. First, a  piece of skin about half the size of a postage stamp is taken from the patient using a chemical solution.Those cells are then separated and replicated in large quantities in a specialized environment that catalyzes this cell development. Then the new cells are put in a printer cartridge, and printed on the patient. The printer is placed over the wound at a distance so that it doesn’t touch the burn victim. It is described as ” like a flat-bed scanner that moves back and forth and put cells on” the patient. Once the new cells have been applied, they mature and form new skin.

The potential for improving burn treatment is transformational. No longer would burn victims suffer from excruciating pain on large donor sites. And the new skin evenly “printed” on the injured area should be able to grow without the kind of lattice scarring and discoloration common in skin grafts today.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed among the “Legal Elite” (Georgia Trend Magazine), as a “Super Lawyer” (Atlanta Magazine), and in the Bar Register of Preeminent Lawyers (Martindale).  He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is President-elect of the 42,000 member State Bar of Georgia.

• “Burn victims will tell you that it doesn’t matter how much morphine is injected. They say the pain is so excruciating, that they have difficulty even finding the words to describe it. Burn pain can be one of the most intense and prolonged types of pain and is difficult to control because of its unique characteristic and changing patterns.”
• Regarding hydrotherapy, “one patient describes it as ‘surreal amounts of pain, almost awe, as if they were taking ladies’ stockings off my arms and legs, only, it was my own skin.’ After awhile, everyone lying in the hospital rooms comes to fear this room. morphine is kept in a locked chest nearby, in dozens of cold vials, and medical staff refill the chest every week.”

I’ve been there, can vouch for the accuracy of those descriptions, but by the grace of God am fine now.  That experience informs my advocacy for burn survivors at a depth beyond mere words.

If you ever have a serious burn injury in northern Georgia, tell the ambulance driver, “take me to Grady, “ as the Grady Memorial Hospital Burn Center is the only appropriate place to go for burn treatment in a large area of Georgia.

Ken Shigley, author of Georgia Law of Torts: Trial Preparation & Practice, is  a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers. He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in trucking accidents, automobile, products and premises liability, catastrophic personal injury, spinal cord injury, wrongful death, products liability,  brain injury and burn injury cases. He is also president-elect of the State Bar of Georgia. Ken and  This post is subject to our ethical disclaimer.