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.

COVID-19 has thrust us into a global crisis unprecedented in the century since the Spanish Flu epidemic of 1918-19. It is not merely disruptive in our daily routines. It involves life, death and enormous hardship in massive scale, probably for a prolonged time.  In this new reality, some of the routines dealing with individual injury cases may be eclipsed by a near term future we did not anticipate just a few weeks ago.

The “new normal” after the end of this pandemic is impossible to discern. Some pundits have emphasized hope that after the entire population passes this crucible of shared hardship and existential threat, we might emerge a kinder, more empathetic, more cooperative and public spirited nation, less torn by toxic partisanship. This will be the central formative experience for the generation forced home from school. Despite some examples of irresponsible spring break conduct, some guess that this may lead to a “Greatest Generation 2.0” in response to shared crisis. Others fearfully predict a dystopian future reminiscent of a Mad Max movie. Reality may be somewhere between those two visions.

One thing is certain. As with every cataclysmic event, legal controversies will flow from this crisis.

Already there is a declaration from the Secretary of Health and Human Services providing immunity from liability for certain individuals and entities against covered claims of loss relating to the manufacture, distribution, administration, or use of medical countermeasures (“Covered Countermeasures”), except for claims involving “willful misconduct.” This was done under the authority of the Public Readiness and Emergency Preparedness Act of 2005 (“PREP Act”), codified at 42 U.S.C. §247d-6d, and is retroactively effective beginning February 4, 2020.  Tthere precedent supporting this immunity. See, e.g., Parker v. St. Lawrence County Pub. Health Dept., 102 A.D.3d 140 (3rd Dep’t 2012) (finding federal preemption over Plaintiff’s state law claim based on the unconsented vaccination of a minor during the H1N1 epidemic).

This immunity from liability applies to manufacturers, distributors, program managers, “qualified persons” (any person authorized to prescribe, administer, deliver, distribute or dispense the Covered Countermeasures), and their officials, agents, and employees authorized to prescribe, administer, deliver, distribute or dispense any antiviral, drug, biologic, or vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19, the transmission of SARS-CoV-2, or a virus mutating therefrom, or “any device used in the administration of any such product, and all components and constituent materials of any such product.”

Activities covered by this immunity from liability include manufacturing, testing, development, distribution, administration, and use of the Covered Countermeasures.

The COVID-19 Declaration is effective as of February 4, 2020 through October 2024, unless extended.

The purpose of the COVID-19 Declaration  is to permit the special use of drugs and other medical products during the COVID-19 pandemic that either have not yet been approved/cleared by the FDA or may be used off-label without the risk of liability in the event of a covered injury or loss. Under the PREP Act, if there are injuries as a result of Covered Countermeasures relating to a public health emergency, the relief available can be found via the Countermeasures Injury Compensation Program (“CICP”), which is charged with establishing a fund for such injuries.

“Covered Countermeasures” include anything used against the pandemic or against adverse events from these products, including antivirals, drugs, biologics, diagnostics, devices, vaccines used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials. These must be a qualified pandemic or epidemic product authorized for investigation or emergency use as defined in the PREP Act, the Food and Drug Cosmetic Act (“FDCA”), and the Public Health Service Act (“PHSA”).

The scope of immunity is not all-encompassing or absolute. Key limitations/qualifications on immunity protection are:

1. Some form of premarket approval is required. The Covered Countermeasure must be approved or cleared by the FDA under the FDCA; licensed under the PHSA; or authorized for emergency use by the FDA under applicable provisions of the FDCA.
2. Must be qualified pandemic or epidemic products, security countermeasures, or drugs, biologics, or devices authorized for emergency or investigational use.
3. Only for “recommended activities” involving Covered Countermeasures related to present or future federal contracts or other federal transactions or agreements, or activities authorized by authorities with jurisdiction to prescribe, administer, deliver, distribute, or dispense Covered Countermeasures following an emergency declaration.
4. Does not apply to death or serious physical injury caused by willful misconduct.
5. Not available for foreign claims.
6. Claim must arise from conduct that is directly related to the development/distribution of a Covered Countermeasure.

We may reasonably anticipate that bad things will happen, and sneaky people will claim immunity to which they are not legitimately entitled.  Those issues will be fought out in court.

——————

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

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

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

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

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

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

Transformation of  lives of clients and their families is part of my calling in law practice. While money is the quantitative measure of success, whenever possible I also try to guide outcomes in a way that will redirect the trajectory of life for clients and their families. A recent case is a good example.

Recently we handled a case for a 30-year-old single mom from a less than privileged background. She had struggled to put herself through a Certified Nursing Assistant (CNA) program. When injured, she was working as a CNA and living paycheck-to-paycheck with her daughter in a modest apartment. Then,  in a catastrophic crash she lost a leg at the knee. After three years of litigation, our team recovered roughly $6.5 million for her.

Many lawyers would just cut a check for the net proceeds after deduction of fees, expenses and liens, and say, “good luck.”  Too often we hear stories of people who come into a large amount of money and in a couple of years are broke. That is not our approach.

When people come into an unaccustomed amount of money, friends, relatives and new lovers often appear on the scene with “great ideas” for use of the money. Without careful management, the funds that were intended to take care of a victim for life soon evaporate.

This young woman’s settlement is illustrative of what we try to do when possible. The bulk of her money was placed in a trust to protect her from  creditors and predators.

A portion of the funds were used to buy this “forever home” which will be held in her trust. It is a lovely house in a safe neighborhood, built in 1937 but completely updated. Renovations include an open floor plan, handicapped accessibility, and new plumbing, electric, HVAC, roof, siding, windows and floors. It is a good place to raise her child.

She will also use a portion of her recovery to return to school with a goal of becoming a Registered Nurse (R.N.). I expect that with a great heart and her life experience with catastrophic injury, she will be a blessing in the lives of many of her future patients.

Her increased financial capacity will also, I expect, improve the life prospects of her daughter.

I hope that she finds love again. If so, the trust will be a buffer against the temptation to let a future love to mismanage and erode her funds.

We have had many cases over the years in which lives were transformed for the better. Examples include:

• A  bright 13-year-old girl had a case for the death of her father. She was about to enter eighth grade at an inner city school. With her mother, she chose a structured settlement that would fund her education first at an elite prep school, and then through college and graduate school. After completing her education she would also get a lump sum sufficient for a down payment on her own home. That set a new trajectory at a critical point in her life.
• When the oldest child in a family with several children was killed in a tractor trailer crash, we recovered for the parents the funds to pay for college of the younger children.
• When another single mom who worked all day at a keyboard had an injury that made that impracticable, we got enough money to fund the business she had always dreamed of starting.

We don’t always get this satisfying an outcome. Some financially unsophisticated clients resist efforts to help in ways other than purely monetary. Some of them run through their money and are broke again within a few years. If that happens, at least we warned them in writing about that potential and tried to counsel them.

There are other clients who clearly have enough experience and sophistication that I don’t worry about their ability to handle money.  Examples include:

• A small business owner who has demonstrated ability to manage his business and finances. He used his injury settlement to expand his going business.
• A couple who were already working with a financial adviser. They used their confidential settlement to advance their retirement by a couple of years and become more active in charitable work in their community.
• An 18-year-old who took the initiative before settlement of his case to set up a meeting with a wealth management officer at a financial institution. He authorized the broker to send me copies of monthly statements until he finished college, then began his  own career in the financial services industry.

This is not just a job. It is a calling to transform lives.

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.

Effective January 2, 2020, he moved his existing law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862. 

Sterigenics plants in Smyrna and Covington, Georgia, have long used ethylene oxide in sterilization of medical equipment. The Environmental Protection Agency air assessment from last year found several census tracts around those plants had significantly increased cancer risks due to ethylene oxide. The EPA recently concluded that the gas is dangerous at lower levels than previously believed.

Ethylene oxide is an organic compound with the formula C₂H₄O. A colorless and flammable gas with a faintly sweet odor, it has many uses in industry but is not safe for household use. At room temperature it is a flammable, carcinogenic, mutagenic, irritating, and anaesthetic gas.

There is evidence from both human and animal studies that inhalation exposure to ethylene oxide can result in a wide range of carcinogenic effects. The International Agency for Research on Cancer classifies ethylene oxide into group 1, meaning it is a proven carcinogen. Ethylene oxide is classified as a class 2 carcinogen by the German MAK commission and as a class A2 carcinogen by the ACGIH. A 2003 study of  women exposed to the chemical while working in commercial sterilization facilities suggests ethylene oxide is associated with breast cancer incidence.

In 2015, Sterigenics reported emissions ethylene oxide from its Smyrna plant of  3,574 pounds. After federal regulators definitively linked ethylene oxide to cancer in humans in 2016, the company’s self-reported emissions of the chemical dropped to 226 pounds.

Due to past emissions data submitted by Sterigenics, t the federal Environmental Protection Agency to project an elevated risk of cancer in surrounding neighborhoods. Similar cancer clusters were reported near a Sterigenics plant in the Chicago area.

All cases involving cancer allegedly caused by chemical exposures are highly complex and involved an enormous amount of scientific analysis and expert witness testimony. These are not intersection collision cases.

We have begun to sign up Sterigenics cancer cases as victims and their survivors from the neighborhoods surrounding these plants have contacted us. As with any case involving complex science, we work with an experienced team to properly analyze and develop the scientific and medical evidence.

 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.

Though common in litigation, confidential settlements can be controversial.

While confidentiality agreements had help expedite settlement, there are concerns that secret settlements can work against public safety by covering up health and safety hazards. As with much in life, the hardest choices are not between good and bad, but between good and good, and between bad and bad.

Under a confidential settlement agreement or order, some or all terms of a settlement are kept secret. Defense lawyers routinely include a confidentiality clause in a proposed release when there is a large settlement. Sometimes it is a throwaway item in a boilerplate document. In other cases they hang tough on confidentiality.

For defendants and their insurers, there are several obvious reasons to seek confidentiality of settlements. Especially in cases in which multiple future claims are likely, such as allegedly defective manufactured products or allegedly widespread conduct, they may seek confidentiality of settlements so as not to encourage additional claims or impair business reputation.

Public safety advocates criticize secret settlements that hinder the ability to identify threats to public health and safety and hold wrongdoers accountable. As Justice Brandeis noted, “[s]unlight is the best of disinfectants.” Where a case involves the potential for widespread public hazards due to product defects or systemic misconduct, there is good reason for plaintiffs to resist secrecy. In the discovery context, there are many factors to consider that are beyond the scope of this discussion of settlements.

Regarding settlement, plaintiffs’ lawyers should: (1) discuss secrecy concerns for public interest in advance with clients; (2) remember that a settlement agreement filed with the court is itself a public record; (3) insist that the settlement comply with states laws, court rules and ethics rules; (4) insist on plaintiff’s ability to disclose settlement to government agencies, accountants, bankers, and financial advisors. See Leslie A. Bailey & Amy Radon, “Confronting Court Secrecy Issues from Discovery through Settlement: Measures to Protect Both Your Client and the Public Interest.”

Defendants may also desire confidentiality of settlements when plaintiffs’ lawyers have figured out a legal strategy that, if widely known in the legal community, could disrupt a multi-billion dollar business model. We have been involved in that repeatedly over the past thirty years but can’t talk about it.

Public safety concerns about confidentiality tend to be less when the cases arises from a single highway collision that, if reported in the media, could impact a defendants’ business but would not leave members of the public exposed to greater danger.
Plaintiffs often just go along with a confidentiality clause in settlement just to get their money sooner. However, it is not always just a matter of convenience. Plaintiffs recovering large amounts of money may desire confidentiality as much as the defense.
If a large settlement is publicized, it can affect relationships with friends, relatives and neighbors who might resent what they see as a financial windfall. Relatives and friends may suddenly come out of the woodworks as soon as they smell money. Investment advisors and charities may besiege the plaintiffs who have come into big money. It is common to agree to confidentiality of a settlement where client quietly lived in a small town and did not want their sudden wealth to distort relationships with friends and neighbors.

We once had a simple, uneducated, unsophisticated client from a rural county who had enough folk wisdom to recognize his vulnerability to such entreaties. In addition to confidentiality of the settlement, he opened a bank account two counties away from home, with a bank that did not have a branch in his home county. Both his initial cash disbursement and monthly settlement annuity payments were automatically deposited in that account. Disconnected from the community where he and all his relatives lived, there was virtually no risk of anyone he knew learning about his vastly improved financial status. He remained in the 150-year-old log cabin that been his family’s home since pioneer days, though considerably upgrading it inside. He worked a while longer to qualify for a state pension, then with a nephew started a “you pick ‘em” berry farm on the family land. With his confidentiality protected, he was able to live unobtrusively and undisturbed by greedy people for the remaining 25 years of his life.

Another client whose son died due to an obscure brake design defect was an immigrant from a Third World country that was emerging from a brutal civil war when we settled his case. As he came from a politically prominent family in his home country, he had an opportunity to take a cabinet position in the new government of his nation. The brutality of the losing side of the civil war was legendary so there were serious concerns for personal safety if anyone back home knew that he was a millionaire. The defendant auto manufacturer also wanted confidentiality of our settlement for all the usual reasons. After determining that ours was the only known incident in the country arising from that brake defect, and that the defect was corrected in all subsequent model years, we determined that the risk to public safety was remote. Thus, we and the manufacturer’s attorneys made a joint motion for a confidentiality order and to seal the court file. The client then returned to his home country to explore his options for public service. However, he determined that due to endemic corruption he preferred to return to Georgia and buy a business.
The terms of a confidentiality clause are negotiable. For example, in one recent case that was settled for $8,000,000, in which both sides wanted confidentiality for different reasons, we included the following language:

In consideration of $100 of the total amount set forth in Paragraph 2.0 of this Agreement, the undersigned agree and acknowledge that the terms and provisions of this Agreement, with respect to the actual amount paid, shall be kept in strict confidence, from inception of the agreement, moving forward. The undersigned further acknowledge and agree that the settlement amount may be revealed only with the written permission of Defendants and Insurer. The only exceptions to this promise of confidentiality are that a party may, without securing the prior written permission of the opposing parties, provide information about this Agreement and the settlement it memorializes as follows:
a. to the Internal Revenue Service or the Georgia Department of Revenue upon request; b. to the court in any proceeding to approve or enforce the terms of this Settlement Agreement so long as the Settlement Agreement is filed under seal;
c. to a health insurance company, health care professional, or others asserting a claim for subrogation or reimbursement for medical expenses paid;
d. as required by any governmental agency or by process of law, so long as the party(s) provides opposing parties with written notice via certified or statutory overnight mail of such governmental agency requirement or process of law and grants the opposing parties an opportunity to contest such governmental agency requirement or process of law in advance of any disclosure by the party(s) and, further, so long as any entity receiving that information is informed of this confidentiality agreement prior to the disclosure of information protected by it; and
e. to a party(s)’s attorneys, professional accountants, and financial advisors, spouse or professional tax consultants with whom that party(s) have a confidential relationship.
f. Counsel for Plaintiff may report the fact and amount of this settlement to any verdict database and in firm marketing materials, though without revealing the names of the parties, defense counsel, Insurer, county of venue, or the date or location of the subject incident.
If the undersigned is asked about any claim described in the recitals or released in Section I of this agreement, the undersigned may respond that “The case has been resolved” or words to that effect.

Blatant violations of confidentiality agreements and orders are relatively rare, in part because the consequences of violation are a deterrent. Remedies available for breaching a confidentiality clause are generally the same as those awarded for other contractual breaches. Nominal or compensatory damages may be awarded in appropriate cases.

Because proof of damages for breach of confidentiality is difficult, such contracts often include a provision for liquidated damages in amount sufficient to deter violations. Most courts have refused to award punitive damages.

Lawyers drafting confidentiality agreements may specify remedies including monetary liquidated damages, injunctive relief, costs, or attorneys’ fees. Liquidated damages amounts should not be so high as to be deemed punitive and thus potentially void.

If it is a confidentiality clause of a contract, that is governed by the same legal rules that govern other types of contracts. That is why settlement agreement often include a consent confidentiality order. But if the confidential settlement becomes an order of the court, the order itself ordinarily becomes a public record. One method to assist in keeping the terms confidential is to have the official record sealed. We have agreed to that where the plaintiff had strong reasons to desire confidentiality. In such cases, the court should independently weigh the need for privacy against the public’s interest in having access to public records.

When parties to subsequent cases seek discovery of prior settlements, confidentiality of settlements is challenged. Some courts allow discovery of confidential settlement agreements only where there is a particularized showing of a likelihood that admissible evidence be generated by the discovery of the terms of the settlement agreement. Other courts have allowed discovery of confidential settlement agreements, provided the party seeking discovery demonstrates that the information is relevant.

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.

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.

The Georgia Supreme Court ruled on 11/7/2016 that outgoing text messages found in a cell phone are admissible in evidence as admissions of the person who sent them. However, incoming text messages are inadmissible hearsay, though their admission in evidence was “harmless” under the circumstances of the case. Glispie v. State, decided November 7, 2016.

This ruling arose in the context of the criminal prosecution of an alleged drug dealer. That would have been a great interest in my past life as a prosecutor, though of course cell phones had not been invented when I was sending criminals to prison.

Text messages can be obtained by law enforcement with a search warrant based upon probable cause to examine the contents of a cell phone. If I were still a prosecutor, I would probably seek search warrants for contents of cell phones in a lot of cases.

In the civil context, however, we do not have that option. We cannot get search warrants in civil cases. Cell phone service providers, e.g., AT&T, Verizon, etc., typically do not keep text messages in the system more than perhaps 72 hours.

The only way to obtain those in a civil case is to obtain a court order for a forensic download of the phone. In addition to records of voice calls placed and received (though not the content of the calls, and text messages, forensic examination of wireless devices such as cell phones can reveal patterns of conduct and communication, including the times that the driver was using an app, typing a text, or watching a video.  It has location history for the phone, showing where the driver was at various points in time.  It includes calls, texts and emails between the driver and the trucking company.  It may include records of communications with employer personnel inconsistent with prudent driver supervision by a motor carrier regarding fatigue management.

Parties opposing forensic download of a cell phone may assert claim of personal privacy. However, where the cell phone user killed someone, that fact may outweigh personal privacy. A trial court judge would be justified in ordering the download subject to a protective order limiting delicate personal information to use in the case after in camera review by the court.

Ken Shigley was an Assistant District Attorney in Paulding County in the last 1970’s. 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 auto accidents, commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

Much of our Atlanta-based litigation law practice is based upon referrals from other attorneys around Georgia and North America for catastrophic injury and wrongful death cases in Georgia. Most of these are not simple, slam-dunk cases. Often we have to contend with a rat’s nest of convoluted, multi-layered liability defenses. Among those is often the “independent contractor” defense. The company that is the prime mover in an activity may cloak itself behind an “independent contractor” shell game, capturing most of the profits while trying to outsource all the risks of harm to others.

Here is a paper I presented on overcoming the independent contractor defense at a national continuing legal education program in New Orleans in 2012. While I haven’t updated it lately, covered all the nuances or included all the Georgia case citations, it does outline major issues in seeking to get through this particular maze.

Effective representation of a seriously injured person requires that counsel reach the pockets of a responsible entity with sufficient insurance coverage or assets to pay a judgment. That often requires reaching behind a screen of independent contractor business relationships erected to evade financial responsibility. The general rule is that a defendant is not liable for the negligence of an independent contractor, but there are many exceptions.  While not comprehensive, this paper seeks to outline major theories for overcoming the independent contractor defense.

Interstate Motor Carriers

Prior to 1956, interstate motor carriers commonly sought to evade financial responsibility by hiding behind “independent contractor” arrangements. In 1953, while addressing carriers’ evasion of  accountability similar to that engaged in by the ATF in this case, the United States Supreme Court described such practices as “evils that had grown up” in the industry, and that the ICC need not “sit idly by and wink at practices that lead to violations of its provisions.” American Trucking Ass’ns v. United States, 344 U.S. 298, 301, 311 (1953).  Those “evils” were summarized in Rediehs Express, Inc. v. Maple, 491 N.E.2d 1006 (Ind. Ct. App. 1986):

The history of the regulations of motor carriers reveals that after the commencement of regulation in 1935, . . .  a substantial number of carriers . . . began to use equipment owned and driven by truckers who had no such ICC operating authority. This use was accomplished by a variety of leases, trip leases, and by other arrangements under which owner-operator truckers carried on the operations of the carriers with operating authority.  In contracting with such persons the carriers took care to constitute the lessors as independent contractors which enabled them to avoid the commission’s safety, financial, and insurance regulations that had been prescribed for equipment and drivers in order to protect the public. Many of the owner-operators without authority were itinerant truckers known as “gypsies,” fly-by-night truckers with poor, unsafe equipment who had little financial ability. They may or may not have had adequate insurance. The hard core of the problem was the trip lease and its attendant evils which permitted an indifferent carrier to evade its safety and financial responsibility. . . . The practice of leasing made it difficult in accident cases to fix responsibility, and certified carriers could thus escape the consequences of the regulations and responsibility for accidents by employing irresponsible persons as independent contractors who were not financially accountable and who had no insurance or were under-insured.

“The use of non-owned vehicles led to public confusion as to who was financially responsible for accidents caused by those vehicles.” Graham v. Malone Freight Lines, Inc., 948 F.Supp. 1124, n.3 (D. Mass. 1996).   Thus, interstate motor carriers often “were able to escape liability for virtually all motor vehicle accidents occurring in the motor carrier’s business.”  Cincinnati v. Haack, 708 N.E.2d 214 (Ohio Ct. App. 1997). In such cases, it was “clear that the scheme as a whole is a mere subterfuge, an unpermitted evasion, not a real avoidance of the provisions of the law.”  Georgia Truck System, Inc. v. Interstate Commerce Commission, 123 F.2d 210 (5^th Cir. 1941), as it was “the motor carrier who has put the entire trip in motion,”American Transit Lines v. Smith, 246 F.2d 86, 87 (6^th Cir. 1957).

Since 1956, federal law has treated independent contractors as statutory employees of a motor carrier in the interstate motor carrier context.  The 1956 amendment to the Interstate Common Carrier Act was intended to require a motor carrier to be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants.  Price v. Westmoreland, 727 F.2d 494 (5th Cir. 1984); Morris v. JTM Materials, supra. “These are basic requirements that are inherent in the relation of the for-hire carrier to the public. When they are lacking, the chaotic conditions that preceded enactment of the Motor Carrier Act, 1935 inevitably ensue.” Cox v. Bond Transp., Inc., 249 A.2d 579 (N.J. 1969).  The purpose is “to protect persons who are injured in highway accidents, by increasing the likelihood that a substantial entity will be available to respond to any judgment rendered.”  Johnson v. Pacific Intermountain Express Co., 662 S.W.2d 237 (Mo. 1983).  This eliminates “the defense of independent contractor by making the owner/operator of the equipment the ‘statutory employee’ of the carrier.”  Shell v. Navajo Freight Lines, 693 P.2d 382 (Colo. Ct. App. 1984).

The Federal Motor Carrier Safety Regulations, 49 C.F.R. § 390.5, defines the term“employee” as,

any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety.  Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.

The Regulatory Guidance to 49 C.F.R. § 390.5 , at Question 17, explains:

The term “employee,” as defined in § 390.5, specifically includes an independent contractor employed by a motor carrier.  The existence of operating authority has no bearing upon the issue.  The motor carrier is, therefore, responsible for compliance with the FMCSRs by its driver employees, including those who are owner-operators.

62 Fed. Reg. 16,407 (April 4, 1997). 49 C.F.R. Chapter III: Regulatory Guidance for the Federal Motor Carrier Safety Regulations, Interpretation to § 390.5, question 17 (1997)(emphasis added).  See also 49 C.F.R. § 390.5 (2002).

The definition of “motor carrier” includes “a motor carrier’s agent,” “employee” includes “an independent contractor while in the course of operating a commercial motor vehicle.” 49  C.F.R.§ 390.5, and “lease” includes a “contract or arrangement in which the owner grants the use of equipment, with or without driver . . . .” 49  C.F.R.§ 376.2. The alternative and disjunctive reference to “contract or arrangement” must have some significance other than mere redundancy. Moreover, “[e]very motor carrier, its officers, agents . . .  shall be instructed in and comply with the rules . . . .” 49  C.F.R. § 392.1.

These Regulations were intended to safeguard the public by preventing motor carriers from circumventing applicable regulations by leasing the equipment and services of independent contractors exempt from federal regulation. The definition of “lease” as “contract or arrangement” extends to any arrangement by which a carrier allows another to haul its freight for compensation. Any other construction would defeat the Congressional policy of requiring financially responsible interstate transportation. Hartford Ins. Co. v. Occidental Fire & Cas. Co., 908 F.2d 235 (7^th Cir. 1990); Transamerica Ins. Co. v. Maryland Cas. Ins. Co., 166 Ariz. 219, 801 P.2d 454 (1990).

Restatent of Torts 2^nd – Liability Of An Employer Of An Independent Contractor

The Restatement includes 15 exceptions to the general rule that an employer is not responsible for the negligence of an independent contractor.  These exceptions are sometimes referred to as non-delegable duties. This paper is not intended as a comprehensive analysis of court decisions applying, approving, rejecting or distinguishing these Restatement provisions.

Contractor’s Conduct In Obedience To Employer’s Directions

Restatement (Second) of Torts  § 410 provides:

The employer of an independent contractor is subject to the same liability for physical harm caused by an act or omission committed by the contractor pursuant to orders or directions negligently given by the employer, as though the act or omission were that of the employer himself.

 Comment b states that this section deals only with the “liability of an employer who does not intend that the contractor shall cause physical harm to any other person, but who either employs a contractor to do work which, no matter how carefully done, involves an unreasonable risk of physical harm to others to whom he owes a duty to exercise care, or who employs a contractor to do work which could be safely done but for the fact that he directs the contractor to do it in a manner involving such risk. The liability is based upon the fact that the employer has been negligent in directing his contractor to do work which is dangerous in itself or in the manner in which it is done. Therefore, the employer is subject to liability, under the rule stated in this Section, for only such physical harm as is caused by the dangerous character of the work or the dangerous manner in which it is directed to be done. He is not subject to liability for any harm caused by some improper method which the contractor, without any direction of his employer, adopts in doing the work.”

Comment c clarifies that “the orders and directions are not negligently given if the employer neither knows nor should know that the work involves such risk even though the contractor discovers during the progress of the work that such risks will be involved in following the orders and directions.”

Comment d explains that “this Section is most usually applicable where construction or repair work is entrusted to an independent contractor under plans and specifications provided by the employer, which prescribe the result to be attained and the material to be used in the work and the manner in which it is to be used. It is, however, equally applicable wherever an employer otherwise directs his independent contractor to do work which, in itself or as ordered to be done, is unreasonably dangerous to others.”

One of the illustrations in the comments is as follows: “A hires a taxicab, tells the driver, B, that he has only five minutes to catch his train, directs B to ignore traffic signals, and offers him a reward of five dollars if he will get to the station in time for the train. While B is driving the taxicab at an excessive rate of speed, it collides with the car of C, causing harm to C. A is subject to liability to C.” It would seem this should be applicable to a shipper, freight broker or logistics company who knowingly establishes positive or negative incentives for a trucker or trucking company to ignore hours of service and other safety regulations,

Comment h provides: “The act of the contractor which subjects the employer to liability under the rule stated in this Section is usually negligence on the part of the contractor. But this is not necessarily true. It may happen that the employer knows or should know of circumstances of which the contractor is excusably ignorant, and which make the work or the manner in which it is directed to be done unreasonably dangerous. In such a case, the contractor would not be subject to liability since he, as a reasonable man, would not realize the risk involved in his conduct. On the other hand, the employer, as a reasonable man, should realize the danger and is negligent in directing the work to be done.”

In Posner v. Paul’s Trucking Service, Inc., 380 F.2d 757 (1^st Cir.,1967), a freight broker required delivery by an independent contractor on a schedule that could not be made in compliance with hours of service rules, thus creating a jury question of the broker’s liability in negligently giving those instructions. Restatement § 410 has been seldom followed in Southern states but has been applied in at least a couple of Tennessee cases. See Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 394 (Tenn., 2002)(Insurer and insured could be held vicariously liable for insurance defense lawyer’s abuse of process directed, commanded, or knowingly authorized by insurer or insured), and Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42, 53 (Tenn.Ct.App.,2004)(Where a church acting as its own general contractor retained and exercised control over independent contractor’s work, knew or had reason to know of the unreasonable risks posed by overspray, and ordered contractor to proceed despite his warnings of potential overspray damage, it was liable for the negligence of the subcontractor).

Negligence In Selection Of Contractor

Restatement (Second) of Torts  § 411 provides:

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor

(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or

(b) to perform any duty which the employer owes to third persons.

Safety rather than financial responsibility is the focus of this section, so merely hiring an independent contractor that is not financially responsible is not enough

Failure To Inspect Work Of Contractor After Completion

Restatement (Second) of Torts  § 412 provides:

 One who is under a duty to exercise reasonable care to maintain land or chattels in such condition as not to involve unreasonable risk of bodily harm to others and who entrusts the work of repair and maintenance to an independent contractor, is subject to liability for bodily harm caused to them by his failure to exercise such care as the circumstances may reasonably require him to exercise to ascertain whether the land or chattel is in reasonably safe condition after the contractor’s work is completed.

 Comment c enumerates factors considered under this section as follows: “(1) the danger involved in the condition of the structure or chattel if the work is entrusted to the contractor is not carefully and skillfully done; (2) the character of the work—whether it is of the kind which a competent contractor is so likely to do properly that it is reasonable to rely entirely or to a certain extent upon his competence as a sufficient assurance that the work has been safely done; (3) the ability which the employer has or should have to appreciate the proper or improper character of the work done for him by the contractor; (4) the ease or difficulty of ascertaining the actual character of the completed work; and (5) the existence of a relation between the contractor’s employer and those injured by the careless or incompetent work of the contractor which entitles them to expect that the employer will personally exercise care for their safety.”

Comment e states that “[t]he rule stated in this Section subjects the employer of an independent contractor to liability only if, as a result of his failure to exercise such care as the circumstances require in inspecting the completed work done by his contractor, he fails to discover its bad condition and as a result bodily harm is caused to someone to whom he owes a duty of maintaining his land or chattels in reasonably safe condition.”

The extent of the employer’s knowledge and experience in the field of work to be done is to be taken into account.

Duty To Provide For Taking Of Precautions Against Dangers Involved In Work Entrusted To Contractor

Restatement (Second) of Torts  § 413 states:

One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer

(a) fails to provide in the contract that the contractor shall take such precautions, or

(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.

 This section is not concerned with routine precautions such as driving at a safe speed with good brakes. Rather, it deals with “peculiar risks” such as demolition of buildings, excavations, etc.

Negligence In Exercising Control Retained By Employer

Restatement (Second) of Torts  § 414 states:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

This requires more than a general right to determine objectives. There must be some retention of control of operative details, such as when a principal has a foreman on site to supervise work of contractors.

Duty Of Possessor Of Land To Prevent Activities And Conditions Dangerous To Those Outside Of Land

 Restatement (Second) of Torts § 414A provides:

A possessor of land who has employed or permitted an independent contractor to do work on the land, and knows or has reason to know that the activities of the contractor or conditions created by him involve an unreasonable risk of physical harm to those outside of the land, is subject to liability to them for such harm if he fails to exercise reasonable care to protect them against it.

 This does not create a duty to inspect, or any reason not to assume that an apparently contractor will not perform work properly. However, when the principal “knows or has reason to know that the contractor is engaging or is about to engage in an activity, or that he has created or is about to create conditions, which will involve such an unreasonable risk to others outside of the land, it is his duty to interfere, and to exercise reasonable care to prevent physical harm to such persons. . . ”

Duty To Supervise Equipment And Methods Of Contractors Or Concessionaires On Land Held Open To Public

Restatement (Second) of Torts  § 415 states:

A possessor of land who holds it open to the public for any purpose is subject to liability to members of the public entering for that purpose for physical harm caused to them by his failure to exercise reasonable care to protect them against unreasonably dangerous activities of, or unreasonably dangerous conditions created by, an independent contractor or concessionaire employed or permitted to do work or carry on an activity on the land.

 This is “based upon the failure of the possessor of the land in question to exercise reasonable care to supervise the equipment or methods of his contractor or concessionaire who carries on an activity which endangers the public attracted to the possessor’s land. In order that the liability shall exist, it is, therefore, necessary, not only that the contractor shall be negligent, but also that the possessor shall have a reasonable opportunity to ascertain the improper equipment or method of his contractor and to secure the substitution of safe equipment and methods.”  Comment c.

Harm Caused By Negligence Of A Carefully Selected Independent Contractor

Restatement (Second) of Torts § 416 states:

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

“[T]he employer remains liable for injuries resulting from dangers which he should contemplate at the time that he enters into the contract, and cannot shift to the contractor the responsibility for such dangers, or for taking precautions against them. . . . the fact that the contract contains express stipulations for the taking of adequate precautions and that the contractor agrees to assume all liability for harm caused by his failure to do so, does not relieve his employer from the liability stated in this Section. . . . It is sufficient that it is likely to involve a peculiar risk of physical harm unless special precautions are taken, even though the risk is not abnormally great. A “peculiar risk” is a risk differing from the common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions.” For example,” if the principal employs an independent contractor to operate a truck this does not apply to speed, maintenance of brakes, etc., but “if the contractor is employed to transport giant logs weighing several tons over the highway, the employer will be subject to liability for the contractor’s failure to take special precautions to anchor them on his trucks. . . . It is sufficient that it is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of doing the work, or the particular method which the employer knows that the contractor will adopt.”  Comments a, c and d.  Cross reference with Restatement §427, infra.

Work Done In Public Place

Restatement (Second) of Torts 417 states:

One who employs an independent contractor to do work in a public place which unless carefully done involves a risk of making the physical condition of the place dangerous for the use of members of the public, is subject to liability for physical harm caused to members of the public by a negligent act or omission of the contractor which makes the physical condition of the place dangerous for their use.

It is not necessary for work be done under or require a franchise, license or permit, or that such a franchise, permit, or license. It is enough that the work, unless carefully done, will involve making the physical condition of the public place dangerous for the use of the public. The words “public place” denote any place includes public highways, parks and public buildings, etc.

Maintenance Of Public Highways And Other Public Places

 Restatement (Second) of Torts § 418 provides:

(1) One who is under a duty to construct or maintain a highway in reasonably safe condition for the use of the public, and who entrusts its construction, maintenance, or repair to an independent contractor, is subject to the same liability for physical harm to persons using the highway while it is held open for travel during such work, caused by the negligent failure of the contractor to make it reasonably safe for travel, as though the employer had retained the work in his own hands.

(2) The statement in Subsection (1) applies to any place which is maintained by a government for the use of the public, if the government is under the same duty to maintain it in reasonably safe condition as it owes to the public in respect to the condition of its highways.

Insofar as this section is directed to liability of governmental entities, its application is in many localities limited by statutory limitations on governmental liability. However, it may also apply to a contractor who undertakes to repair, construct, or maintain a highway, and entrusts the work to a subcontractor;

Repairs Which Lessor Is Under A Duty To His Lessee To Make

 Restatement (Second) of Torts § 419 provides:

 A lessor of land who employs an independent contractor to perform a duty which the lessor owes to his lessee to maintain the leased land in reasonably safe condition, is subject to liability to the lessee, and to third persons upon the land with the consent of the lessee, for physical harm caused by the contractor’s failure to exercise reasonable care to make the land reasonably safe.

 This rule “applies only where a legislative enactment imposes the duty of repair or where the lessor by a covenant in the lease or otherwise has assumed a contractual duty to make repairs.”  Comment a.

Repairs Gratuitously Undertaken By Lessor

 Restatement (Second) of Torts § 420 provides:

 A lessor of land who employs an independent contractor to make repairs which the lessor is under no duty to make, is subject to the same liability to the lessee, and to others upon the land with the consent of the lessee, for physical harm caused by the contractor’s negligence in making or purporting to make the repairs as though the contractor’s conduct were that of the lessor.

Maintenance Of Structures On Land Retained In Lessor’s Possession Necessary To Tenant’s Enjoyment Of Leased Land

Restatement (Second) of Torts § 421 provides:

 A possessor of land who, having leased a part of the land, is under a duty to maintain in reasonably safe condition the part retained by him, and who entrusts the repair of such part to an independent contractor, is subject to the same liability to the lessee, and to others upon the retained part of the land with the consent of the lessee, for physical harm caused by the negligence of the contractor in failing to maintain such part of the land in reasonably safe condition, as though the lessor had himself retained the making of the repairs in his own hands.

 Work On Buildings And Other Structures On Land

Restatement (Second) of Torts § 422 states:

A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside of the land for physical harm caused to them by the unsafe condition of the structure

(a) while the possessor has retained possession of the land during the progress of the work, or

(b) after he has resumed possession of the land upon its completion.

This applies “only to injuries occurring while the possessor has retained possession of the premises during the progress of the work, or after he has resumed possession of the land upon the completion of the work. The rule stated in this Section has no application to injuries occurring while the land is turned over to the contractor and he is in exclusive possession of it. Thus where the employer moves out of his building and surrenders it to the contractor while it is undergoing construction, demolition, or repair, there is no liability under the rule here stated.” Comment c.

Work Withdrawing Lateral Support

Restatement (Second) of Torts § 422A states:

One who employs an independent contractor to do work which the employer knows or should know to be likely to withdraw lateral support from the land of another is subject to the same liability for the contractor’s withdrawal of such support as if the employer had retained the work in his own hands.

“[O]ne who employs an independent contractor to do work involving excavation, or other work of a kind which the employer knows or should know to be likely to result in the withdrawal of lateral support from the land of another, is subject to the same liability for a withdrawal of such support by the contractor as if he had retained the work in his own hands.” Comment b.

Making Or Repair Of Instrumentalities Used In Highly Dangerous Activities

Restatement (Second) of Torts § 423 provides:

One who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully constructed and maintained, and who employs an independent contractor to construct or maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in constructing or maintaining such instrumentalities as though the employer had himself done the work of construction or maintenance.

This has been applied to high voltage electric lines and appliances, brakes on vehicles, explosives, radioactive materials, etc.

Precautions Required By Statute Or Regulation

  Restatement (Second) of Torts § 424 provides:

One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.

This has been applied to support a nondelegable duty to comply with a variety of building and safety codes.

Repair Of Chattel Supplied Or Land Held Open To Public As Place Of Business

Restatement (Second) of Torts § 425 provides:

One who employs an independent contractor to maintain in safe condition land which he holds open to the entry of the public as his place of business, or a chattel which he supplies for others to use for his business purposes or which he leases for immediate use, is subject to the same liability for physical harm caused by the contractor’s negligent failure to maintain the land or chattel in reasonably safe condition, as though he had retained its maintenance in his own hands.

This has been applied to elevators (Gaffney v. EQK Realty Investors, 213 Ga.App. 653, 445 S.E.2d 771 (1994)), escalators, hotel water heaters, security systems, premises safety and a wide variety of other context.

Negligence Collateral To Risk Of Doing The Work

 Restatement (Second) of Torts § 426 provides:

Except as stated in §§ 428 and 429, an employer of an independent contractor, unless he is himself negligent, is not liable for physical harm caused by any negligence of the contractor if

(a) the contractor’s negligence consists solely in the improper manner in which he does the work, and

(b) it creates a risk of such harm which is not inherent in or normal to the work, and

(c) the employer had no reason to contemplate the contractor’s negligence when the contract was made.

This “collateral negligence” or “casual negligence” in the operative detail of the work, as distinguished from the general plan or method followed or the result to be accomplished. It relates to negligence which is unusual or abnormal, or foreign to the normal or contemplated risks of doing the work, as distinguished from negligence which creates only the normal or contemplated risk. Comment a.

Negligence As To Danger Inherent In The Work

 Restatement (Second) of Torts § 427 states:

One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.

This is closely related to Restatement §16. However, It is not, necessary to the employer’s liability that the work be of a kind which cannot be done without a risk of harm to others, or that it be of a kind which involves a high degree of risk of such harm, or that the risk be one of very serious harm, such as death or serious bodily injury. It is not necessary that the work call for any special skill or care in doing it. It is sufficient that work of any kind involves a risk, recognizable in advance, of physical harm to others which is inherent in the work itself, or normally to be expected in the ordinary course of the usual or prescribed way of doing it, or that the employer has special reason to contemplate such a risk under the particular circumstances under which the work is to be done. Comments a and b.

Work Involving Abnormally Dangerous Activity

 Restatement (Second) of Torts § 427A provides:

One who employs an independent contractor to do work which the employer knows or has reason to know to involve an abnormally dangerous activity, is subject to liability to the same extent as the contractor for physical harm to others caused by the activity.

This has been applied in a wide variety of cases involving premises security, explosions, structure collapses, electrocution, toxins, etc.

Work Likely To Involve Trespass Or Nuisance

 Restatement (Second) of Torts § 427B provides:

One who employs an independent contractor to do work which the employer knows or has reason to know to be likely to involve a trespass upon the land of another or the creation of a public or a private nuisance, is subject to liability for harm resulting to others from such trespass or nuisance.

This provision has been invoked in a variety of circumstances, especially in cases involving flooding, pollutants or fire spreading to another’s property. 

Public Franchise / Unreasonable Risk of Harm

Restatement (Second) of Torts § 428 states:

An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.

Prior to adoption of the statutory employer rules in the interstate motor carrier context, this Restatement rule was used to overcome the independent contractor defense. See, e.g., Black v. Montgomery Trucking Co., Inc., 129 Ga.App. 36,(followed Restatement rule), reversed on other grounds without mention of either Restatement rule or federal statutes or regulations, 231 Ga. 211 (1973)(compare Dove v. National Freight, Inc., 138 Ga.App. 114 (1976)); Venuto v. Robinson, 118 F.2d 679 (3rd Cir., 1941)( Restatement 428 applied to hold interstate motor carrier liable for negligence of independent contractor driver); Hodges v. Johnson, 52 F.Supp. 488 (D.C.VA. 1943); War Emergency Co‑op. Ass’n v. Widenhouse, 169 F.2d 403 (4th Cir. 1948); Lehman v. Robertson Truck‑A‑Way, 122 Cal.App.2d 82, 264 P.2d 653 (Cal.App. 3 Dist. 1953); Louis v. Youngren, 12 Ill.App.2d 198, 138 N.E.2d 696 (Ill.App. 1 Dist., 1956); Eli v. Murphy, 39 Cal.2d 598, 248 P.2d 756 (Cal, 1952)(nondelegable duty of motor carrier to public).

However, some jurisdictions have declined to classify trucking as an unreasonably dangerous activity giving rise to a nondelegable duty under this statement of the Restatement, reasoning that “[t]he operation of any motor vehicle may be said to involve some risk to others but the use of [this independent contractor’s] equipment involved no more risk than that of any other.” Gaskill v. Calaveras Cement Co. 102 Cal.App.2d 120, 226 P.2d 633 (1951).   Lebrun v. Stop & Shop Supermarket Co., 67 Mass.App.Ct. 1102, 851 N.E.2d 478 (Table)(Mass.App.Ct.,2006).See also, Brown v. Truck Connections Intern., Inc., 526 F.Supp.2d 920 (E.D.Ark.,2007); Walker v. Wittenberg, Delony & Davidson, Inc., 241 Ark. 525, 531, 242 Ark. 97, 412 S.W.2d 621, 625 (1967).

There are also cases holding this inapplicable to a shipper which does not have a public franchise. See, e.g., Wilson v. IESI N.Y. Corp., 444 F.Supp.2d 298 (M.D.Pa.,2006).

Exempt commodity loads. In Serna v. Pettey Leach Trucking, Inc., 110 Cal.App.4th 1475, 2 Cal.Rptr.3d 835 (2003), the California Court of Appeals held that the Restatement (Second) of Torts § 428 applied to a interstate motor carrier even though that carrier was carrying a commodity (poultry) that was exempt from the economic regulations of the DOT.

Taxi cabs. Courts in several jurisdictions have applied Restatement § 428 to operation of taxi cabs under a public franchise so that taxi companies that lease cabs to drivers as independent contractors are vicariously liable. See, e.g., Belder v. Dandridge, 2002 WL 32076963 (Va.Cir.Ct. 2002); Teixeira v. Car Cab Three, Inc., 1994 WL 413034 (Mass.App.Div. 1994); Paige v. Red Top, Inc., 255 A.2d 279 (NJ App. Div. 1969).

Negligence In Doing Work Which Is Accepted In Reliance On The Employer’s Doing The Work Himself

Restatement (Second) of Torts § 428 provides:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

Where a customer relies upon the principal to provide goods or services, and the principal substitutes goods or services from an independent contractor, the principal may be liable for the contractor’s negligence.

Conclusion.  Counsel for plaintiffs facing an independent contractor defense may use this paper as  a starting point for research, exploration and perhaps a bit of creativity, weaving together Restatement, statutes, regulations, local ordinances and common law to obtain fair compensation for their clients.

Ken Shigley 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.

Property insurance policies typically include provisions that the policyholder must cooperate in investigation and adjustment. This includes an examination under oath (EUO) — answering a lot of questions from the insurance company’s lawyer. Failure of the policyholder to submit to the examination may preclude even an innocent insured from any recovery under the insurance contract.

Policyholders who represent themselves against insurance company lawyers make fatal errors.

Generally insurance companies may impose almost any conditions upon their obligations so long as they are not inconsistent with public policy.  An insured cannot avoid the binding effect by neglecting to read the insurance policy. With rare exceptions, the policyholder must comply with the conditions in order to hold the insurer liable in court.

Policyholders who appear for an EUO without a lawyer knowledgeable about property insurance law may make fatal mistakes that cannot be undone.

In the decade I spent in a law firm representing insurance companies, part of my work involved property insurance claims, particularly those of suspected fraud and arson. For years I spent a lot of time going through burned out residential and commercial buildings to see the evidence of arson that investigators had found.

In many cases, insurance companies hired me to conduct examinations under oath of policyholders. It was never a contest of equals because so many policyholders either came alone or hired a lawyer who knew nothing about this aspect of insurance law.

No do-overs: Eleventh Circuit decision on policyholder’s fatal error before hiring a lawyer.

In a recently reported decision an Allstate policyholder’s house burned. The insurer developed doubts whether he complied with condition of the homeowner’s insurance policy that the property must be used as a residence. The insurer gave notice for the policyholder to appear for an examination under oath. He showed up, angry and unrepresented, and refused to answer substantive  about his residence until the insurer recanted statements in a letter from its attorney which he found offensive.

The insurance company’s attorney, whose attitude can easily provoke such counterproductive anger, said, “[I]f you do not respond to the questions that are put to you here today, Allstate will treat that failure to respond as a material breach of the contract…. And … refusal to respond could result—probably will result in the denial of this claim for that reason standing alone.” The policyholder stated that he would answer the insurer’s questions but insisted that the insurer recant the disputed statements in the letter first. Of course, the insurance company recanted nothing.

A year later, the policyholder hired a lawyer who demanded payment and offered to have the policyholder appear for an EUO. The U.S. Eleventh Circuit Court of Appeals held that the offer to submit to an EUO a year after refusing to answer questions was too little too late, and ruled for the insurance company. Hutchinson v. Allstate Insurance Company, 2018 WL 3359549 (11^th Cir., decided July 10, 2018).

Long history of courts supporting insurers’ position on EUO’s.

For well over a century, Georgia law has recognized that a policyholder who fails to provide information requested by the insurance company in this process breaches the terms of the policy. That results in loss of the right to collect under the policy. Few excuses for failure to comply suffice. In an early case, the Georgia Supreme Court held that if an insured absents himself so that he cannot be found to be served with an EUO notice, that is construed as refusal to submit to the EUO. Firemen’s Fund Ins. Co. v. Sims, 115 Ga. 939, 42 S.E. 26 (1902)

Cooperation with the insurer’s investigation of the claim, including submitting to an examination under oath, is a condition precedent to the right to recover under the contract. Buffalo Ins. Co. v. Steinberg, 105 Ga.App. 366 (1), 124 S.E.2d 681 (1962).

This is ordinary contract law, which applies to contracts of insurance. “When a plaintiff’s right to recover on a contract depends upon a condition precedent to be performed by him, he must allege and prove the performance of such condition precedent, or allege a sufficient legal excuse for its nonperformance. ” Wolverine Ins. Co. v. Sorrough, 122 Ga.App. 556, 560 (3), 177 S.E.2d 819 (1970). See also, Halcome v. Cincinnati Ins. Co., 254 Ga. 742, 334 S.E.2d 155 (1985).

The intimidating EUO notice.

In cases of suspected insurance fraud, including arson, insurance companies typically have their lawyers send policyholders formal written notices to produce a long list of documents.

The list of documents requested may be overwhelming, especially when the policyholder’s files may have been lost in a fire. It may include several years of records of income taxes, banking, income, expenses, insurance policies and claims, debt, credit records, and the purchase of all the personal property claimed to be lost.

They notify the insured to show up at a specific time and place to answer questions under oath. To appear reasonable and avoid being accused of violating an implied covenant of good faith and fair dealing, the insurer may show some flexibility about scheduling. If the insurance company’s lawyer can subtly bait the policyholder into refusing to answer questions, the insurance company wins.

Possible defenses against EUO notices.

While the law is clear about the requirement for policyholders to cooperate with the insurer’s investigation and participate in an EUO, there are a few circumstances that have precluded summary judgment in favor of the companies. Then the reasonableness of the EUO notice becomes a jury question and may open the door to settlement negotiations. Examples include:

• Medical inability to comply. Blackburn v. State Farm Fire & Cas. Co., 174 Ga.App. 157, 329 S.E.2d 284 (1985).
• Reasonableness of notice for EUO more than sixty days after receipt of a demand for payment before. Northern Assur. Co. of America v. Karp, 257 Ga. 403, 54 S.E.2d 129 (1987).
• Alleged errors in EUO transcript as justification for refusal to sign transcript. Nichols v. Pearl Assur. Co., 71 Ga. App. 378, 31 S.E.2d 127 (1944).

Hire a property insurance lawyer early.

Remember that adage that anyone who tries to represent himself has a fool for a client.

Anyone facing an insurer that sends a notice to appear for an examination under oath should not try to go it alone. It is important to immediately hire a lawyer with experience in property insurance. Many lawyers who are good in automobile insurance matters are clueless about property insurance.

While my practice no longer focuses on this area, I can guide folks to other lawyers who practice property insurance law.

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Ken Shigley 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, and past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His Atlanta-based 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.

His rural childhood home was a modest cement block two bedroom, but full of love. His dad and uncle, WWII combat veterans, built it on weekends one pickup truck load of materials per payday. The house included an indoor toilet and a black and white TV by the time Ken started school. As educators his parents tried hard to expose him to academic and cultural opportunities. (Dad was principal of a 12 grade country school and mom was a teacher.) And yes, car buffs, that is a ’53 Studebaker.
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Now this “country boy come to town” is running for a rare open seat on the Georgia Court of Appeals.

By the time he entered high school, the Shigley family moved to the bigger town of Douglasville. At Douglas County High School, he was student body president, and selected for Governor’s Honors Program and as one of two high school seniors from Georgia chosen for the U.S. Senate Youth Program.
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After graduating from Furman University and Emory University Law School, Ken Shigley went back home to take a job as an Assistant District Attorney. He prosecuted cases of murder, armed robbery, rape, child molestation, arson, burglary, drug dealing, embezzlement, and more. During that time, he was chosen as the “Outstanding Young Man” in Douglas County. After leaving the District Attorney’s office he worked in small town general law practice until he was recruited to join an Atlanta law firm.

As a young lawyer Ken Shigley worked his way up from associate to name partner in an Atlanta law firm where he defended civil suits for insurance companies and state and local governments in courts all over Georgia.
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After ten years in that firm, he launched his own small firm to represent individuals, families and small businesses in insurance, injury and wrongful death cases.

He has spent 40 years laboring in the trenches a practicing lawyer in a variety of contexts.

State Bar President

In 2011-12, Ken Shigley served as president of the 45,000 member State Bar of Georgia, which includes all lawyers and judges admitted to practice in Georgia. That virtually full-time volunteer job involved intense involvement with leaders of all branches of state government, and oversight of scores of committees and sections, three offices and a staff of 75. Completion of the five year cycle of State Bar leadership posts provides a “45,000 foot perspective” on Georgia’s legal system.
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During his term as president he launched the “Next Generation Courts Commission” to bring together lawyers, judges from all classes of courts, court clerks and administrators, and myriad other stakeholders in the justice system to explore what the court system should look like in 20 years. This was chaired by Superior Court Judge Lawton Stephens of Athens.
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At the end of his term as State Bar president, the Judicial Nominating Commission put Mr. Shigley on the “short list” for appointment to the Court of Appeals.

Family

Ken and Sally Shigley were married almost 34 years before she departed this life after a 29-year battle with recurring meningioma brain tumors. After exhausting all surgery, radiation and chemotherapy options, she died peacefully in home hospice care on June 17, 2017, with Mr. Shigley at her side.

The day she began hospice care, Sally Shigley told her husband, “Don’t quit that judge race.” A month after her death, he resumed groundwork for this campaign.

Sally and Ken had two children who are now adults.
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Anne, 30, is married and lives in New Hampshire. She a paraprofessional in an elementary school and her husband is a telecommunications engineer at Dartmouth College. They attend Riverbank Church on the VT/NH border, which was launched as a mission of Northpoint Church in Alpharetta.
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Ken Jr., 28, owns a fitness training business in Brookhaven and attends Passion City Church in Atlanta with his girlfriend.

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Faith
Ken Shigley was raised Methodist, and for the past 35 years has been an active member of Peachtree Presbyterian Church in Atlanta. He has served as an elder, teacher, stewardship chair, and currently is a trustee of the Peachtree Trust which manages bequests to the church’s endowment fund.

Vote BIGLEY for Ken SHIGLEY
for Judge, Georgia Court of Appeals

Nonpartisan Judicial Primary, May 22, 2018

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

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

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

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

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

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

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

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.

It appears that by time he leaves office at the beginning of 2019, Governor Nathan Deal will have:

• Vastly reformed our criminal justice system;
• Expanded the Supreme Court and Court of Appeals;
• Appointed a majority of the Supreme Court and Court of Appeals;
• Appointed a substantial portion of the state’s Superior Court and State Court trial judges;
• Launched construction of a new landmark Judicial Building near the Capitol building; and
• Facilitated creation of a statewide electronic court filing system.

Fortunately, he will have done all that without harming the civil justice system. Some conservative politicians condemn trial lawyers and are drawn to “tort reform” like moths to a flame, always looking for new ways to rub salt in the wounds of people who have been hurt.

Gov. Deal doesn’t go there. I have been at events where it would have been a cheap applause line to condemn trial lawyers and call for draconian tort reform. He talked about education, economic development, criminal justice reform, transportation infrastructure, etc., never the cheap political drug of “tort reform.” In the spring of 2012, I made a trip to Washington as State Bar president to attend two events honoring Georgia lawyers. Gov. Deal spoke at a Republican National Lawyers Association program at which my friend Randy Evans was presented an award as the “National Republican Lawyer of the Year.” Before a group that included a number of Fox News commentators, Gov. Deal talked with conviction reflecting his own life experience about “the wisdom of a small town trial lawyer.”

The first time I met Nathan Deal about 30 years ago when he was that “small town trial lawyer.”  We were at a doctor’s deposition in Habersham County. I was a young insurance defense lawyer and he was representing a plaintiff in a personal injury case.  He was cordial, professional and competent in representing his client. Much of his Gainesville law practice involved defense work for insurance companies, as did mine in those days. But like many small town lawyers, he also did other things, including service as Juvenile Court judge. He served as State Senator from the Gainesville area and as Majority Leader before his election to the U.S. House of Representatives.

Nathan and Sandra  Deal did a good job raising their children. Their son, Jason Deal, graduated from Furman, my alma mater, and then from UGA Law School. Jason in due course was elected District Attorney and later Superior Court judge in their hometown. As judge, Jason became a leader in the development of Drug Court programs to salvage lives of folks caught up in addiction.

1. Criminal Justice Reform.

When Nathan Deal was elected Governor, one of his first priorities was criminal justice reform. At that point I was president-elect of the State Bar of Georgia. Shortly after he was sworn in, my predecessor and I went to meet with him about support for the new Evidence Code that a State Bar task force had developed. Gov. Deal responded positively, then quickly turned the conversation to his plans for a Criminal Justice Reform Council. I told him I had planned to appoint a bar committee on this, but maybe now it wouldn’t be necessary. He responded that I should appoint a strong bar committee on criminal justice reform to complement the work of his Criminal Justice Reform Council.

A couple of months later, his executive counsel called to ask me to serve on that Criminal Justice Reform Council. I told him that I hadn’t handled criminal cases myself since the indictments were written on parchment with a quill pen, but that didn’t matter.  I was proud to serve two years on the council as we helped develop legislation that supported drug, DUI and veterans’ court programs, sentencing and probation improvements, chipped away at some of the problems with excessive rates of incarceration and sought to improve the juvenile justice system.

From several close encounters, I can attest that the Governor’s heart and soul have been deeply invested in salvaging lives of nonviolent offenders who are caught up in addiction and mental health problems. He has pursued a methodical, step by step project each year of his tenure, winning consensus for each incremental proposal. I expect the best is yet to come.

1. Expansion of Court of Appeals from 12 to 15 judges.

Four years ago, during my year as State Bar president, I had conversations with Gov. Deal’s executive counsel about a lot of things, including his idea of expanding the notoriously overworked Court of Appeals once budget problems growing out of the recession were eased. The state constitution already allowed for up to 15 seats on the Court of Appeals, but only 12 seats had been funded and filled.

In a number of those meetings, the executive counsel repeatedly encouraged me to think about applying for a Court of Appeals seat. In July 2012, the month after I complete my term as bar president, the Judicial Nominating Commission put me on the “short list” for two vacant seats on that court. It was clear that one of those seats had to go to a woman and one to a Superior Court judge, and the only female Superior Court judge on the list withdrew from consideration. In my interview with Gov. Deal, he was most warm and gracious, pointed out that there would be another opening in December due to an upcoming retirement, that I was his kind of guy and I should keep my “powder dry” for the next appointment. Based on that, I deferred my search for new office space and staff. I still believe he was totally sincere in that conversation.

In that brief interval from July to November 2012, I actually believed I would be donning the black robes of an appellate judge. I was working with the Governor’s team in day-long Criminal Justice Reform Council meetings every couple of weeks. When my mom died that fall, they treated me like family.

But in November 2012, Romney lost to Obama and Republican political strategists gained a new interest in diversity. In some campaigns for governors’ offices in other states, they had seen Democratic ads compiling photos of a Republican governor’s appointees who were overwhelming white males.

Within a week after that election, I noticed a subtle change in my interaction with a young lawyer on the Governor’s staff who been quite encouraging to me for months. When the next Court of Appeals appointment came in December 2012, it went to Carla Wong McMillian, a very bright Asian-American woman who was born the month I graduated from college. No political challenger would be able to run that composite photo ad, including me as one of the old white male appointees, against Gov. Deal in 2014.

I like Judge McMillian and think she does a fine job, but I admit that I did have a few adult beverages the night after I got that news. Then I pulled up my socks and started looking for new office space for my law practice. In retrospect, I recognize that when you complete a term as State Bar president at 61, you don’t have much runway left for pursuing judicial aspirations.

While I briefly looked at the possibility of running for the court in 2014 if there had been an open seat, that did not happen. When I determined that there would not be an open seat, I texted my wife, “Good news, bad news. No opportunity on the court but we’re going to France in May.” Her immediate response was, “So what’s the bad news?”

Late in the 2015 legislative session, Gov. Deal added to the budget three new judgeships on the Court of Appeals, posts which were authorized but had never been funded. The legislature easily went along with expanding the court from 12 to 15. The new posts were to be effective January 1, 2016.

Again, I briefly considered seeking one of those appointments. But I recognized that the Governor would likely appoint people young enough to serve several decades — and young enough to be my children if I had started a family in my early twenties — while I would only be able to serve one decade before the quasi-mandatory retirement age. Moreover, I knew that if I got on the “short list” again as a courtesy, I would have to interrupt a planned vacation in Italy to fly home for a perfunctory interview.

Sure enough, when we were in Rome when I read online that Gov. Deal had appointed Judge Amanda Mercier (40), Judge Nels Peterson (38) and Judge Brian Rickman (36). All are brilliant young conservatives who will serve with distinction. All were born after I started law school, and one was born when I was prosecuting felonies. Like several other young appellate judges, all are members of the conservative Federalist Society. All are bright, well qualified and young enough to serve until approximately 2050 (Mercier), 2052 (Peterson) or 2054 (Rickman) before reaching mandatory retirement age. The torch has been passed to a new generation.

1. Expansion of Supreme Court from 7 to 9 justices.

In the 2016 legislative session, Governor Deal is close to gaining legislative approval for expanding the Supreme Court. The state constitution authorizes up to 9 seats on the Supreme Court but only 7 have been funded and filled. On February 18^th, the Georgia House of Representatives approved the court expansion. It appears likely that the Senate will also approve it.

The enlarged size of the Supreme Court would enable it to hear some cases in panels of three which would recommend decisions to the full court. The same legislation would make jurisdictional changes, shifting cases involving land titles, equity, wills, extraordinary remedies and divorce and alimony from the Supreme Court to the recently expanded Georgia Court of Appeals. According to Chief Justice Hugh Thompson, the intent is to free up the state’s highest court to devote more time and energy to the most complex and the most difficult cases that have the greatest implications for the law and society at large.

1. Appointment of majority of both Supreme Court and Court of Appeals.

By the time he leaves office in January 2019, Governor Deal will have appointed at least 5 of 9 justices on the state Supreme Court and at least 8  of the 15 judges on the Court of Appeals.

On the Supreme Court, he appointed Justice Keith Blackwell in 2012, promoting him from the Court of Appeals in his mid-thirties. By the end of 2016, it appears that he will be able to appoint two new members of the Supreme Court to fill the newly created posts. By 2018, he will appoint two additional Supreme Court justices due to retirements.

The two retirements from the Supreme Court will be due to the forced retirement age of 75. In Georgia, an appellate judge must retire on or before the day he or she reaches the age of 75, or on the last day of the term in which she or he reaches 70, whichever is later. Any appellate judge who fails to resign then receives no retirement benefits. Due to this effectively mandatory retirement rule, Chief Justice Hugh Thompson (whose wry wit is unfortunately kept under wraps in public because too few people who don’t know him well would be sharp enough to get his jokes) will need to retire by July 2018 and Presiding Justice P. Harris Hines will retire by September 2018. My hunch is that Chief Justice Thompson step aside as Chief Justice by 2017, to allow Justice Hines to take a turn as Chief Justice before his retirement.

If a Republican is elected President in 2016, it would not be surprising to see Justice David Nahmias appointed to the U.S. Eleventh Circuit Court of Appeals or perhaps even a vacancy on the U.S. Supreme Court. He was on Harvard Law Review with President Obama, clerked for the late Justice Scalia on the U. S. Supreme Court, served in the U.S. Justice Department in the second Bush administration and was U.S. Attorney in Atlanta toward the end of the Bush years. His move to a federal court would give Gov. Deal yet another opportunity to appoint a Supreme Court justice.

The Governor may fill at least one – and maybe more — of those Supreme Court openings with a promotion of young conservatives from the Court of Appeals. The Court of Appeals judges who are in that category include Judges Steve Dillard (appointed by Gov. Perdue), Mike Boggs (who chaired Criminal Justice Reform Council and was blocked in federal court nomination by liberal opposition in Washington), Elizabeth Branch (who served in the U.S. Department of Homeland Security in the second Bush administration), Carla Wong McMillian, Brian Rickman, Amanda Mercier and Nels Peterson (who was executive counsel to Governor Sonny Perdue and state Solicitor General under Attorney General Sam Olens).

I will be surprised if the Governor does not give the last of his Supreme Court appointments to his loyal executive counsel, Ryan Teague, now in his mid-thirties, allowing him to join on the bench the young Federalist Society peers in whose judicial appointments he has been instrumental. I like Ryan and enjoyed working with him when I was State Bar president.

Each promotion from the Court of Appeals to the Supreme Court will give the Governor a “twofer,” the opportunity to make another appointment to the Court of Appeals, probably other young members of the conservative Federalist Society. Looking at the “short list” from last fall’s Court of Appeals selection process, and excluding candidates over 50 years old who may have been included mostly as a courtesy, that leaves Georgia Solicitor General Britt Grant, 37. She was an aide in Nathan Deal’s congressional staff in Washington and at the Bush White House before graduating from Stanford Law School in 2007. There is also a long list of young Superior Court and State Court judges who might be considered. Each pomotion of a trial court judge to the Court of Appeals to replace a judge promoted to the Supreme Court would give the Governor a “three-fer,” an opportunity to appoint three judges in a chain reaction.

In addition, the highly respected Presiding Judge Herb Phipps will have to retire from the Court of Appeals by his 75^th birthday before Gov. Deal’s term ends. Because Judge Phipps is African American, there will be sentiment in favor of replacing him with by another African American. The pool of young, conservative African American Federalist Society members  in Georgia is small. I will refrain from speculation about who might be chosen.

1. New Judicial Building.

Another topic discussed during my term as State Bar president was the potential to build a new Judicial Building. Currently both appellate courts and the Attorney General’s staff are shoehorned into the old judiciary building across from the capitol, with offices scattered through adjoining buildings. While it is not publicized, I have heard privately for years that some of these leaky buildings have some sort of “sick building syndrome.” Whether due to mold, chemicals, poor ventilation or something else, I understand it is a chronic problem.

Last year, the State Financing and Investment Commission shifted $7.5 million in bond funds to begin the process of designing a new judicial complex to be built on the site of Archives Building that has been vacant (except for movie productions) several years due to structural problems.

Preliminary design images have leaked into the media. Designed to house Georgia’s highest courts for at least the next century, it will stand above the intersection of I-20 and I-75/85 near the capitol building. While this is still a work in progress, I expect construction will begin before Gov. Deal leaves office.

1. Electronic court filing.

One of my pet projects as State Bar president was to promote creation of a statewide e-filing system in superior and state court. The biggest obstacle was the Council of Superior Court Clerks whose concept of e-filing was contrary to what most lawyers and judges seemed to want. We wanted a system in which we could use a single statewide log-in to access filing in all participating counties, and in which we could view and download documents in our case as well as submitting documents electronically.

When I mentioned this to Gov. Deal, he immediately understood and supported what we were trying to do. Last year, he included in the budget funds for development of the system. I am now serving on the Judicial Council Standing Committee on Technology, which has contracted with the National Council of State Courts for development of the statewide e-filing portal. Already a variety of e-filing systems are proliferating through the state. I am hopeful that a statewide e-filing portal will be operational by the time Gov. Deal leaves office.

In summary, by the time he leaves office in January 2019, the small town lawyer I met at a doctor’s deposition long ago will have stamped his legacy on the Georgia judicial system with expanded appellate courts, a new generation of young conservative judges who can serve to the middle of the 21^st century, a reformed criminal justice system, new judicial building, new evidence code and statewide electronic court filing system.

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Ken Shigley is a former president of the State Bar of Georgia (2011-12), chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section (2015-16) and a board certified civil trial attorney of the National Board of Trial Advocacy.

Atlantans were shocked a couple of weeks ago by the story of a home invasion robbery attempt in which teenage males approached a young father on his front porch, forced their way into the house and shot the father twice. His wife fled out the back door with their six-month-old infant while the invaders fired shots at her, and called 911 while hiding from them.

The alleged shooter, 18-year-old Brandon Jerome Smith, was arrested several days ago. Now three younger teenagers — 15-year-old Trequan Sutton, 15-year-old Quindarius Slade, and 14-year-old Veshawn Smith — have turned themselves in. They are being charged as adults for  charges, including armed robbery, home invasion, aggravated battery, aggravated assault with a deadly weapon, cruelty to children and theft by taking.

Any prosecutor and judge addressing this case will make sure these thugs are locked away for a long time. As a young prosecutor years ago, I would have relished the opportunity to introduce them to the prison system. They have thrown their lives away in a senseless act for nothing. Perhaps it was a gang initiation. Perhaps something else. But it was surely a senseless waste of human potential. They are fortunate they did not succeed in killing anyone, as easily could have happened.

As a father, I wonder where their parents were and what kind of parental influence results in young men thinking this kind of conduct is even marginally acceptable. I know that good parents can have kids who get involved in drugs and go off track. But violent home invasion, shooting a father on his front porch and trying to shoot a mother with a baby in her arms? That’s not just off track. That is deeply evil.

These young men will pay a severe price for their horribly bad choices. They will be behind bars for the next 10 to 20 years, tragically wasting their lives. It is too late to take away what they did.

But what about the parents who abdicated any responsibility for guidance and discipline? Georgia law does provide a limited degree of parental accountability for parents of  young thugs who should reap some of the consequences along with the sons they failed to raise.

O.C.G.A  § 51-2-3 provides for liability of parent or guardian for willful torts by minor children as follows:

(a) Every parent or guardian having the custody and control over a minor child or children under the age of 18 shall be liable in an amount not to exceed $10,000.00 plus court costs for the willful or malicious acts of the minor child or children resulting in reasonable medical expenses to another, damage to the property of another, or both reasonable medical expenses and damage to property.

(b) This Code section shall be cumulative and shall not be restrictive of any remedies now available to any person, firm, or corporation for injuries or damages arising out of the acts, torts, or negligence of a minor child under the “family-purpose car doctrine,” any statute, or common law in force and effect in this state.

(c) The intent of the General Assembly in passing this Code section is to provide for the public welfare and aid in the control of juvenile delinquency, not to provide restorative compensation to victims of injurious or tortious conduct by children.

The three minors supposedly have six parents among them. Each of those six parents could be held liable for $10,000 plus court costs. Even if the victim has other resources to pay medical bills, each of the parents should be sued and then subjected to the most severe possible collection efforts to enforce the full amount out of whatever meager resources they may have.

I know from experience that parenting is hard. Poverty and race are not excuses; listen to Ben Carson on that topic. Single moms in poverty without education can raise good men who succeed. Even fathers in prison can try hard to influence their children not to follow their bad example.

Someone should hold their feet to the fire and squeeze out of them every dime of $10,000 per parent to help defray the medical expenses, even if it requires garnishing the prison cigarette accounts of absentee fathers.

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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 theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

The “laying on of hands” can resonate powerfully. In my background, it has spiritual and theological implications as a ritual of blessing or of healing. Can this and other senses beyond sight and hearing also be part of legitimate trial advocacy in conveying truth to jurors?

The Georgia Court of Appeals recently said yes in the context of a case where two experts disagreed on whether there was a difference in temperature of the hands of a plaintiff who had a diagnosis of complex regional pain syndrome (also known as reflex sympathetic dystrophy), due to medical malpractice. (Kudos to Lloyd Bell who ably tried the case and called me to brainstorm about this while the appeal was pending.)

In Piedmont Newnan Hosp., Inc. v. Barbour, — S.E.2d —-, 2015 WL 4316873 (Ga.App.,2015), decided on July 16, 2015, the trial judge allowed jurors to feel the hands of the plaintiff to decide whether there was a difference in temperature. The plaintiff’s expert had testified that such a difference in temperature between the hands was a diagnostic criteria for CRPS. The defense expert said there was no such difference in temperature. The judge let jurors hold the hands and decide for themselves whether there was a temperature differential. The result was a substantial verdict for the plaintiff.

On appeal, the court rejected defense arguments that the trial judge abused his discretion by allowing jurors to make a medical diagnosis, that it made them witnesses who could not be cross-examined, that the exercise had no probative value, and that such a practice has been rejected by other courts around the country.

Federal Rule of Evidence 401 (O.C.G.A. § 24–4–401) states that relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Temperature of the hands was indisputably relevant to deciding whether the plaintiff had CRPS.

The court discussed cases from other states in which jurors were allowed to use touch, taste and smell to determine facts. This included cases where they were allowed to feel a lump in a plaintiff’s arm, fractured skull, arms and legs to determine temperature differentials, and other body parts. The court also cited favorably two old Georgia moonshine cases, Union v. State, 7 Ga.App. 27, 27(4), 66 S.E. 24 (1909) (no error if jurors tasted liquid from jug admitted into evidence in illegal whiskey trial); Morse v. State, 10 Ga.App. 61, 63(3), 72 S.E. 534 (1911) (jurors may utilize all of their senses, including taste and smell, in determining whether liquid was an intoxicating liquor).

What are the implications of this ruling for trial advocacy? How else can lawyers find ways to allow jurors to use all their senses in the search for truth? And how much would be too much, overreaching to the point of turning off judges and jurors?

Consider all the senses and think outside the box. Traditionally, we think of “five senses” — sight, hearing, touch, smell, and taste – a short list credited to Aristotle. But researchers now have expanded the list to 21 senses:

• Sight:  This really includes is two types of seeing based on two distinct types of receptors present, one for color (cones) and one for brightness (rods).
• Taste:  Again, this may be broken down into five types of taste based on different taste receptors — sweet, salty, sour, bitter, and umami. The taste sense, unlike sight, is a sense based off of a chemical reaction. “Umani” is Japanese for pleasant savory taste, when receptors detect the amino acid glutamate, generally found in meat and some artificial flavoring.
• Smell:  Like taste, the sense of smell involves olfactory sensors that work off of a chemical reaction.  Smell combines with taste to produce flavors. Olfactory memory can be powerful and closely linked to deep emotional response. Think of how often your own memories are linked to smells – cookies baking in your grandmother’s kitchen, the smells of nature in a favorite place, etc.
• Touch:  This involves four distinct types of touch sensors perceiving pressure, temperature, pain, and itching.
• Thermoception:  Apart from sense of temperature on touch, this is the ability to sense heat and cold in the environment and internally in the body.  It involves hot and cold receptors and a distinct brain function.
• Sound:  People with normal hearing detect vibrations along some medium, such as air or water that is in contact with ear drums.
• Proprioception:  This sense gives you the ability to tell where your body parts are, relative to other body parts.
• Tension Sensors:  Receptors in muscles allow the brain the ability to monitor muscle tension.
• Nociception (pain):  In the past, pain was though to be just the result of overloading other senses, such as “touch.” But now it is considered its own unique sensory system.  There are three distinct types of pain receptors: cutaneous (skin), somatic (bones and joints), and visceral (body organs).
• Equilibrioception (balance):   The sense that allows you to keep your balance and sense body movement in terms of acceleration and directional changes.  This sense also allows for perceiving gravity.  The sensory system for this is found in your inner ears and is called the vestibular labyrinthine system.  But some people who have lost both vestibular nerves, and thus do not have this sense at all, are able to compensate admirably by use of visual cues. For example, my daughter lost both auditory and vestibular nerves in the removal of neurofibromatosis tumors but has been able to complete triathlons. How do you swim over a mile, bike over 50 miles and then run a half marathon, with no sense of balance? Doctors at Harvard included her in a study to figure it out.
• Stretch Receptors:  These are found in such places as the lungs, bladder, stomach, and the gastrointestinal tract.  A type of stretch receptor, that senses dilation of blood vessels, is also often involved in headaches.
• Chemoreceptors:  An area of the medulla in the brain detects blood born hormones and drugs and controls the vomiting reflex.
• Thirst:  This monitors hydration and tells us when we need something to drink.
• Hunger:  We are all quite familiar with this one.
• Magnetoception:  This is the ability to detect magnetic fields, which is principally useful in providing a sense of direction when detecting the Earth’s magnetic field.  Humans don’t have as much of this as birds that migrate following magnetic fields. But humans do have some sense of magnetoception, though it is poorly understood.
• Time:  Human perception of time varies widely, and may be more accurate when people are younger rather than older. People with brain damage often lose the ability to keep track of time. Others seem to have a biological alarm clock and habitually wake up ten minutes before the time they set on an electronic or mechanical alarm clock. Researchers have determined that the mechanism we use for sensing time involves the cerebral cortex, cerebellum, and basal ganglia.

I am not smart enough to immediately think of appropriate ways to employ all these senses of jurors in trial advocacy. However, here are a few examples both commonplace and slightly outside of customary usage. Any lawyer tempted to try techniques that are not customary should seek the judge’s permission in advance and have a trial memorandum to show the judge that it really is OK to allow a slightly unconventional demonstrative aid.

• Smell. Olfactory memory can be emotionally powerful and a tremendous tool in persuasion.
  • Alcohol. If alcohol is at issue, one could use containers of the type of alcohol involved as demonstrative aids during closing argument, open and pour them while talking, thus filling the courtroom with the smell of beer or whiskey. I tried this in a mock trial at the Ultimate Trial Advocacy Course at Harvard years ago, but have never had the right occasion to try it in court.
  • Drugs. I started out as a prosecutor. It was not unusual to have officers testify about the smell of drug contraband. One could also give jurors the opportunity to smell a bag of marijuana, for example, as jurors were allowed to taste moonshine in old Georgia cases.
  • Charred materials. We sometimes have cases in which vehicles burned and the contents have smoky, charred aroma. A customary response is to just get photos of those things and keep the nasty smells out of our files and offices. But introduction into evidence of smelly remains from fires could powerfully reinforce the reality of the fire.
  • Chemicals. Where appropriate and with suitable precautions, jurors could be allowed to smell brake fluid, gasoline and other chemical that are involved in a case.
• Touch. As in cases cited by the Court of Appeals in Barbour, jurors may be invited to lay hands on the injured person to confirm aspects of any injury tactilely as well as visually. A possible side effect may be in forming a connection between jurors and the person they actually touch.
  • Rough scars. Discoloration from a laceration or burn may fade, but the skin remains uneven, bumpy or of an unnatural texture.
  • Unevenly healed fractures. Even when bones knit together, there may be a palpable lumpiness at the fracture site. Jurors could feel that.
  • Medical implants. If an injured person has some sort of medical implant palpable from the outside – plates and screws in an arm or leg, screws securing a rod in a femur, feeding tube, port for chemo, etc. – jurors might be invited to feel from the outside what is visible only on radiology images.

Perhaps lawyers more creative than I will think of ways to use others of those many senses for communicating the truth to jurors at trial. In doing so, however, lawyers should take care not to just develop a “bag of tricks” but to employ all the senses as a means of communicating truth.

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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.

In the case of Hartley v. Agnes Scott College, the Supreme Court addressed the question “whether a campus police officer employed by a private college qualifies as a “state officer or employee” who may assert immunity from tort suits under the Georgia Tort Claims Act.” Last year, a plurality decision of the Court of Appeals concluded that the defendant Agnes Scott College police officers were entitled to immunity. Agnes Scott College v. Hartley, 321 Ga. App. 74 (741 SE2d 199) (2013).

In reversing the Court of Appeals, Associate Justice David Nahmias, a Harvard Law graduate who clerked for U. S. Supreme Court Justice Antonin Scalia, wrote, “After considering the GTCA as a whole, rather than only its definitions section, we disagree, because it is clear that the Agnes Scott officers were not acting for any state government entity when they committed the alleged torts.”

The plaintiff in this case contended contends that the private college police officers could not be immune because they do not qualify as state officers or employees as defined in OCGA § 50-21-22 (7), which says in full:

“State officer or employee” means an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state. The term state officer or employee also includes any natural person who is a member of a board, commission, committee, task force, or similar body established to perform specific tasks or advisory functions, with or without compensation, for the state or a state government entity, and any natural person who is a volunteer participating as a volunteer, with or without compensation, in a structured volunteer program organized, controlled, and directed by a state government entity for the purposes of carrying out the functions of the state entity. This shall include any health care provider and any volunteer when providing services pursuant to Article 8 of Chapter 8 of Title 31. An employee shall also include foster parents and foster children. Except as otherwise provided for in this paragraph, the term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity. “

The Court of Appeals had relied on the Campus Policemen Act, OCGA §§ 20-8-1 to 20-8-7, which gives campus police who are POST certified the same law enforcement powers as other police. The dissent in the Court of Appeals pointed out language in the statute excluding private college police from the definition of “state officer or employee.”

Justice Nahmias, in writing for the Supreme Court, saw it differently, viewing the Campus Policemen Act in the context of the Georgia Tort Claims Act which provides the exclusive remedy for tort claims against state government. In reviewing the legislative history of the GTCA, Justice Nahmias cited  Kenneth L. Shigley & John D. Hadden, Georgia Law of Torts – Trial Preparation and Practice § 15:3 (2013 ed.), as follows:

“Prior to enactment of the GTCA, tort claims were brought against individual state employees and officials rather than the state agencies, and funds were allocated by the state to pay settlements or judgments against employees and officials within the course and scope of their duties. The GTCA reversed this scheme, so that claims are brought against agencies rather than individual employees and officials.”

After detailed analysis of the Georgia Tort Claims Act, the Supreme Court concluded that the campus police officers employed a private college clearly were not acting on behalf of any “state government entity,” and therefore did not benefit from the immunity provided to officers acting in such capacity.

The book chapter quoted by the Supreme Court was a collaboration with co-author John Hadden, a brilliant young man who did most of the heavy lifting of research and drafting on that portion of the book. The quoted account of history of practice prior to enactment of the GTCA grew out of Ken Shigley’s experience. From about 1982 to 1992, much of his practice at an insurance defense law firm involved defense of state officials and employees of nearly all departments and agencies of state government as outside counsel retained by the Georgia Department of Administrative Services Risk Management Division.

Since the mid-1990s, that experience has proven useful in representing injury victims and their families in significant liability cases against state agencies under the Georgia Tort Claims Act which was enacted in 1992. These have included cases based upon operation of state vehicles, highway design, etc. Two of the most notable cases against the State of Georgia have included catastrophic crashes of vans or buses carrying large groups of college students.

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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. In 2012, he was included in the “short list” of nominees for the Court of Appeals by the Georgia Judicial Nominating Commission.

When the meeting ended, my bride and I remained at the beach for a few extra days of R&R. In the words of Kenny Chesney, “no shoes, no shirt, no problems.”

Several years ago, as I prepared to enter the State Bar presidency, I got some great advice from Irwin Stolz of Athens who served as State Bar president 42 years ago. He said, “Have fun while you’re there, then get out of the way.” I had fun and now I’m getting out of the way.

It was a grand, unexpected opportunity to serve in these roles. Working hard at at it,  perhaps I planted some seeds that will take root and blossom in years to come.

Now I am delighted and re-energized to devote the balance of my career to a 100% focus on serving clients in catastrophic injury and wrongful death cases across Georgia.

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.

Medicare, which asserts claims under the Medicare Secondary Payer Act, is often the hardest to deal with because the Center for Medicare and Medicaid Services (CMS) bureaucracy is infamously slow and difficult to deal with, and will never tell us the amount they demand before we settle a case with the other side.

I had one case in my office in which it took 18 months after the case settled, writing to them about every 30 to 60 days, to get any response at all from Medicare about the amount they claimed for reimbursement.

For the past couple of years, an amazing coalition that includes the US Chamber of Commerce, major employers, the insurance industry and trial lawyers — groups that seldom agree on the time of day — has lobbied for the “SMART Act” (Strengthening Medicare and RepayingTaxpayers Act, S.1718/H.R. 1063), to rein in the unresponsive Medicare bureaucracy.

On December 19th, the U.S. House of Representatives — which can’t agree on much these days — suspended its rules to pass the SMART Act by a bipartisan vote of 401 to 3.

If ultimately passed into law, this legislation will:

1. Require the Center for Medicare and Medicaid Services to issue a demand BEFORE a settlement, judgment or award in certain liability claims, rather forcing parties to fly blind into settlements and then drag  out final closure for months or years after settlement;
2. Establish a 3-year statute of limitations for Medicare Secondary Payer claims, rather than leaving parties exposed to late hits years after a settlement is concluded;
3. Abolish the use of Social Security numbers for Section 111 Reporting;
4. Establish a right of appeal for insurance companies and self-insureds;
5. Soften Section 111 penalties giving the Department of Health and Human Services discretion when it issues such penalties;
6. Establish an annual minimum thresholds for Section 111 reporting, where the cost to HHS is greater than the recovery.

 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, and 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.