When people call us about a potential lawsuit for wrongful death or catastrophic injury in Georgia, one of the topics they sometimes find confusing is the decision about where to file a suit.

The choice of court in which to file suit involves the interaction of subject matter jurisdiction, personal jurisdiction, and venue. In general, subject matter jurisdiction dictates which courts have the authority to hear cases regarding a generalized subject matter. Personal jurisdiction refers to the authority of a specific court to enforce its judgment as to a particular defendant. Venue rules determine the geographic location in which a particular cause of action may be tried. Individually, each of these concepts operates to limit the forum in which a case may be filed.

Georgia has 159 counties, each of which has a Superior Court. Any civil case may be filed in Superior Court, which also handles all felony criminal cases, divorces, administrative appeals, etc. Superior Courts are organized into 49 judicial circuits comprised of from one to eight counties, and ten judicial administrative districts.

Superior Court has jurisdiction over any civil damages case, plus felony criminal cases, divorces, equity, land titles, etc. In addition, 49 counties also have a State Court which has jurisdiction over civil damages cases and misdemeanor criminal cases.

Often there is only one court in which subject matter jurisdiction, personal jurisdiction, and venue can be combined. If so, the choice is simple. It may be bad, but it is simple. In other cases, there are a number of options to consider. Having identified all possible courts in which a suit may be filed, a lawyer should evaluate the advantages and disadvantages of each. The difficult choices are not between good and bad, but between good and good and between bad and bad.

The decision to file in Superior Court or State Court in a county that has both depends on local knowledge. In some counties, particularly in urban areas, most personal injury and wrongful death cases are filed in State Court. In many smaller counties, however, the conventional wisdom is that the State Courts may not have the capacity to handle large, complex civil cases.

Except as otherwise provided by the Georgia Constitution, in a civil action against a resident tortfeasor, venue is proper in the county where the defendant resides. For a person over eighteen and under no disability, that is the place where the family of the person permanently resides, if in Georgia. If a person has no family residing in Georgia, the place where that person generally lodges is considered to be that person’s domicile. That is simple in theory, but may become more complicated in sorting out the messy facts in a case.

In suits against joint tortfeasors residing in different counties, suit may be filed in the county of residence of either defendant. This provision has been held to apply only to actions in which the joint tortfeasors are residents of the State of Georgia. An insolvent estate of a deceased joint tortfeasor is not merely a nominal party, so venue may be based upon the county of the insolvent estate rather than the county of a solvent joint tortfeasor. In comparing potential counties in which to file a case, the lawyer must evaluate the reputation of the locality, its judges and jury pool.

“Vanishing venue” is a Georgia rule that a verdict or judgment against a nonresident of the forum county would become a nullity if resident defendant were dismissed prior to trial, at trial, or on appeal. One who wins a trial only to lose venue and come up empty may feel like Charlie Jones in “Peanuts” when Lucy yanks the football away before Charlie can kick it.  “Vanishing venue” was eliminated in 1999 in the interest of judicial economy and efficiency, but revived in the 2005 tort reform legislation, when O.C.G.A. §9-10-31 was amended to provide:

(d) If all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper. If venue would be proper in more than one county, the plaintiff may elect from among the counties in which venue is proper the county and the court in which the action shall proceed.

Under this rule, venue as to a defendant who is a resident of another county in Georgia is dependent upon the ability of the court to enter judgment as to defendant who is a resident of the forum county. In a case involving alleged joint tortfeasors, the test of whether a verdict may be obtained against a nonresident defendant is whether the verdict against the resident defendant is authorized. If the resident defendant is discharged from the action, the court is without jurisdiction to enter judgment as to the nonresident defendant. The result is that the case must be retried against the remaining defendant.

Corporations. In a suit against a domestic corporation, a foreign corporation authorized
to transact business in the state, a nonprofit corporation, or a limited liability company, venue lies in the county where the defendant “resides.” As a general rule, each of these entities is deemed to reside “in the county where its registered office is maintained, or if [a] corporation [or limited liability company] fails to maintain a registered office, it shall be deemed to reside in the county in this state where its last named registered office or principal office, as shown by the records of the Secretary of State, was maintained.”

But if a person files a tort suit against a domestic corporation, or a foreign corporation authorized to transact business in this state, venue will be proper in the county where the cause of action originated, if the corporation has an office or transacts business in that county. O.C.G.A. §14-2-510(b)(4). If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business. A notice of removal shall be filed within 45 days of service of the summons. Upon motion by the plaintiff filed within 45 days of the removal, the court to which the case is removed may remand the case to the original court if it finds that removal is improper under the provisions of this paragraph. Upon the defendant’s filing of a notice of removal, the 45 day time period for filing such notice shall be tolled until the remand, the entry of an order by the court determining that the removal is valid, or the expiration of the time period for the plaintiff to file a motion challenging the removal, whichever occurs first.

Under O.C.G.A. §14-2-510(b)(4), the “principal place of business” of a corporation is deemed to be the registered office listed with the Secretary of State. After a corporate defendant has removed a case to the county where its principal office is located, a plaintiff can amend the complaint to assert facts supporting venue in the original county and the case, and move to remand to the county where the suit was filed.

When a corporation has been dissolved, and suit is later filed against it, venue is in the county in which it had its registered office before dissolution.

A foreign corporation’s residence for venue purposes in a tort case is both the county in which it has its registered office and the county in which the tort occurred if the corporation has office and transacts business in that county.

When a defendant is added as a party to a lawsuit under the relation back provision of O.C.G.A. §9-11-15(c), venue over that defendant is determined based upon the facts existing at the time the suit was originally filed, as if it were a party to the original action from the beginning.

This venue provision may provide for interesting results with regard to actions filed against foreign corporations authorized to transact business in this state. If a plaintiff files a tort action against a foreign corporation in the county in which the cause of action originated, the foreign corporation may not be able to remove the case to the county in which it has its registered office. Rather, O.C.G.A. §14-2-512(b)(4) only allows for removal within 45 days to the county in which the corporation has its “principal place of business.”

Motor Carriers cases. A lawsuit against a resident or nonresident motor common carrier or motor contract carrier may be brought in the county where the cause of action or some part thereof arose. If the motor carrier or its agent is not capable of being served in that county, “a second original may issue and service be made in any other county where the service can be made upon the motor carrier or its agent.” Unlike the venue provision for actions against railroads and electric companies, the venue prescribed by O.C.G.A. §40-1-117 is not exclusive. That is, “venue [as to a motor carrier] can be predicated upon any statute which is otherwise applicable.”

O.C.G.A. §40-2-140 authorizes a direct action against the insurer for a motor carrier. The joinder provision in the direct action statute permits a plaintiff to join a motor carrier’s insurance company in the same action as a motor carrier. However, a motor carrier and its insurer are not considered joint tortfeasors or joint obligors, so proper venue as to one defendant is not necessarily proper venue as to the other, and the direct action against the insurer is an independent proceeding on the insurance contract with venue subject to an independent determination. The insurance code allows a plaintiff to sue an insurer in any county where the company has an agent or place of doing business or any county where such agent or place of doing business was located at the time the cause of action accrued or the contract was made, out of which the cause of action arose. The contract action against the insurer of a motor carrier on the policy itself “is cognizable as an independent suit without joinder of the motor carrier.” Therefore, the plaintiff may bring a direct action against the motor carrier’s insurer alone, in any county where venue is proper as to the insurer.

Insurance companies. Suits against insurers may be filed in any of the following counties: (1) where the principal office of the company is located; (2) where the company has an agent or place of doing business; (3) where an agent or place of doing business was located at the time the cause of action accrued or the contract was made out of which such cause of action arose; or (4) where the insured property is located or where the insured person maintains his legal residence. Personal property is deemed to be located in the county of the legal residence of the owner. The Office of Insurance and Safety Fire Commissioner’s web site includes an insurer search feature. Upon retrieving information about an insurance company, the web site allows a search for agents (including full agent contact information) by city and state.

Venue for nonresidents under the long-arm statute. When jurisdiction over a nonresident of the state is predicated upon the provisions of Georgia’s long-arm statute, “venue … shall lie in any county wherein a substantial part of the business was transacted, the tortious act, omission, or injury occurred, or the real property is located.” In addition, when a suit is brought against a resident of the State of Georgia, any nonresident of the state “who is involved in the same transaction or occurrence and who is suable under the provisions of [the Georgia long-arm statute] may be joined as a defendant in the county where a resident defendant is suable.” Under this provision, jurisdiction and venue over the nonresident defendant “shall not be affected or lost if at trial a verdict or judgment is returned in favor of such resident defendant.” If the resident defendant is dismissed from the action prior to the commencement of trial, the action shall be transferred to a county wherein venue is proper. One claiming lack of venue has the burden of proving it by competent evidence.

Venue under the Georgia Nonresident Motorist Act. In a suit brought by a resident plaintiff under Georgia’s Nonresident Motorist Act, the resident plaintiff may file suit either in the county where “the accident or injury occurred or the cause of action originated, or in the county of the residence of the plaintiff.” But if the plaintiff is a nonresident of the state, the action may be brought only in the county where “the accident or injury occurred or the cause of action originated.”

When suit is filed against a resident of the State of Georgia for damages resulting from a motor vehicle accident or collision occurring in Georgia, venue is proper only in the county where the resident defendant resides. If a nonresident of the state is also involved in that same collision and that nonresident is suable under Georgia’s Nonresident Motorist Act, the nonresident may be joined as a defendant in the county where the resident defendant resides. But unlike the venue provisions relating to resident joint tortfeasors, a jury verdict in favor of the resident defendant does not deprive the court of jurisdiction or venue as to the nonresident defendant.

However, the Nonresident Motorist Act does not apply when the defendant is a resident of Georgia at the time of the tort. Police officers may write on the accident report the address that appears on a driver’s license, which may not be a current residence address at that time. At the time suit is filed, particularly against a defendant who has moved out of state, it may be difficult to determine with certainty whether the defendant was a resident of Georgia at the time of the collision. That is particularly common among youthful or transient drivers who leave few if any footprints in residential leases, utility accounts, or other documented indicia of residency. Therefore, it is a prudent practice to serve such a defendant under both the Nonresident Motorist Act and the Long Arm Statute in a county that would be proper under the residency scenario that seems most probable, conduct prompt discovery, and be prepared to transfer the case to another county where venue would be proper if residency is other than it first appears.

Sojourners and transients. Sojourners are nonresidents who are passing through or sojourning temporarily in the state. Venue as to a nonresident of Georgia, passing through or sojourning temporarily in the state, may be in any county in which he may be found at the time when the action is brought.” Transients are persons who, for reasons of business or pleasure, frequently change residence. If a person resides indifferently at two or more places in Georgia, that person may elect which of such places shall be his domicile. If such an election is made known generally among those with whom he transacts business in this state, that place is his domicile. If no such election is made, or if an election is made but is not generally known among those with whom he transacts business in Georgia, third persons may treat any one of the places in which the person resides as his domicile. A person who habitually resides a portion of the year in one county and another portion of the year in another, such as a college student who moves back to the parental home during the summer, is a resident of both, and may be served in either county. A transient who has no family permanently residing at one place in this state may be sued wherever they are temporarily staying even if they have no intention of remaining there.

State government agencies and authorities. The Georgia Tort Claims Act requires that all tort suits against the state under that statute must be filed “in the state or superior court of the county wherein the loss occurred.” This has been construed to mean that if an injury occurs in one county, any of the hospitalization is in another county, and further hospitalization or death occurs in yet another county, venue may be proper in any of those counties. Thus, if a state agency is properly a defendant in a crash occurring in rural Talliaferro County, the injury victim is transported to a hospital in Augusta (Richmond County) and later transferred to specialized spinal cord or brain injury rehabilitation in at Shepherd Center (Fulton County), venue would be proper in Fulton County.

The statute also provides that “in any case in which an officer or employee of the state may be included as a defendant in his individual capacity, the action may be brought in the county of residence of such officer or employee.” Any tort action against the state for losses sustained in any other state must be filed “in the county of residence of any officer or employee residing in this state upon whose actions or omissions the claim against the state is based.” This limitation on venue is a constitutionally valid condition on the waiver of sovereign immunity. When a tortious injury occurs in one county, and the victim dies from the injury in a second county, venue for the wrongful death claim is in the county where the death occurred.

Many constitutional amendments and statutes concerning local government authorities, e.g., industrial authorities, development authorities, housing authorities, water and sewer authorities, airport commissions, etc., which are not published in the Code, may include special venue provisions. The Department of Community Affairs maintains a registry of such authorities. In preparing to file suit against any such authority, counsel must research the law that created it. For example, suits against the Metropolitan Atlanta Rapid Transit Authority alone must be filed in the Superior Court of Fulton County, but when MARTA is alleged to be a joint tortfeasor it may be sued in the county of the co-defendant’s residence.

Federal courts. Most plaintiffs lawyer most of the time prefer to avoid federal court for a number of reasons that are beyond the scope of this article. However, when there is federal diversity jurisdiction, a lawyer should weigh the options. If in such a case, the state venue would be in a small county with great potential for “home cooking,” or when a suit filed in a state court of an urban county would likely be removed to federal court by the defendant, filing in federal court may be the best option.

Georgia has three federal judicial districts – Northern, Middle and Southern. Despite the names, these districts slice the Georgia map diagonally. The Northern District is oriented diagonally across the north and west of the state, and includes divisions based in Atlanta, Rome, Gainesville and Newnan. The Middle District stretches from the southwest corner of the state to the South Carolina line, with seven divisions based in Macon, Columbus, Athens, Americus, Albany, Valdosta and Thomasville. The Southern District spreads inland from the Atlantic Ocean and Savannah River, and includes divisions based at Savannah, Augusta, Dublin, Waycross, Brunswick and Statesboro.

Local rules of federal district courts allow filing in the division in which a Georgia resident defendant resides or the division in which the cause of action arose. Thus, for example, if a fatal crash occurs in Burke County in the Augusta Division of the Southern District, and the defendant resided in Bulloch County in the Statesboro Division of the Southern District, the plaintiff could choose to file in federal court in either urban / suburban Augusta or the rural Statesboro Division. Similarly, if a defendant resides in rural Chattooga County in the Rome Division of the Northern District but the crash occurs in suburban Cobb County in the Atlanta Division, the plaintiff may file suit in federal court in Atlanta.

The ancient Chinese military strategist Sun Tzu in The Art of War wrote of the necessity of using local guides. That is a necessity.

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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, a board-certified civil trial attorney of the National Board of Trial Advocacy, and lead author of Georgia Law of Torts: Trial Preparation and Practice.   Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018. 

Dax Lopez is a judge of the State Court of DeKalb County, nominated by lame-duck President Obama to fill a vacant seat  on the U.S. District court in Atlanta, as an apparent bipartisan compromise to fill the seat with Republican approval.  Surprisingly for an Obama nominee, Judge Lopez is a conservative Republican, a longtime member of the conservative Federalist Society, and a graduate of the Coverdell Leadership Institute which is  the forerunner of the current Republican Leadership for Georgia program. He was initially appointed as a judge by conservative Republican Governor Sonny Perdue, cousin of US Senator David Perdue.  He is also Hispanic, having been born in the US territory of Puerto Rico and moved to Georgia with his family when he was six years old.

Unlike an earlier Hispanic judge whose prospect for promotion to federal court was sunk a few years ago due to lack of proper documentation when he came to the US as a small child, Judge Lopez is a US citizen born to parents who were US citizens. He is not an immigrant, much less an illegal immigrant or “anchor baby.” He clerked for a federal judge and worked in a large corporate law firm before Republican Governor Perdue appointed him to DeKalb State Court at age 34. He has been a good, fair, well-respected trial judge.

When I was weighing whether or not to take another shot at appointment to the Georgia Court of Appeals last year, after making the “short list” in 2012, I figured Judge Lopez was a likely appointee. That seemed logical, as Governor Deal prefers appointing judges who are young, conservative and if possible provide some degree of diversity. Having seen a young Asian American woman selected for the seat for which I thought I might have a chance at the end of 2012, I suspected Judge Lopez, as a young, conservative Hispanic judge, could be a slam dunk for a Republican appointment to the Georgia Court of Appeals or Supreme Court.

Then, several months ago, when the Obama administration nominated Judge Lopez for an opening on the United States District Court for the Northern District of Georgia, it appeared to be a bipartisan compromise to fill the court post in an election year with someone who would be readily accepted by Georgia’s two Republican senators. After all, Judge Lopez was a conservative Republican appointed by Senator David Perdue’s cousin, Governor Sonny Perdue. Some of the top Republicans in Georgia openly endorsed his nomination.

But then anti-immigration activists and two sheriffs began raising sand about the fact that Judge Lopez was a member of the Georgia Association of Latino Elected Officials (GALEO), though he resigned that membership after he was nominated for the federal court.  Not surprisingly, GALEO had opposed anti-immigrant legislation and discrimination which heavily impacts Hispanics. Also not surprisingly, Judge Lopez as the second Hispanic judge in Georgia, was a board member of the organization, even though he was a conservative Republican not active on that issue.

Until recently, my fellow Republicans were intent on reaching out to Hispanics as the fastest growing group of voters in the U.S. As a member of the Republican National Lawyers Association, I thought that was a good idea even though it might have further reduced my chances of getting a judicial appointment. (My chances were virtually nonexistent anyway due to age, as in recent years most appellate court appointees have been 15 to 25 years younger, and I ultimately decided not to bother again with the nomination process.)

Knowing the need to fill the open seat on the U.S. District Court in Atlanta, it seemed like a fair compromise for the administration to nominate Judge Lopez, who it would have seemed would easily gain approval by Georgia’s Republican U.S. Senators.

Judge Lopez is a good judge worthy of a promotion. As a conservative Republican and member of the Federalist Society, he was a surprising choice for the current administration. He would have seemed a more likely choice for a Cruz or Rubio administration if either of them were to win next November.

Whatever the opponents say, the political opposition to Judge Lopez looks like it is based upon the fact that he is Latino rather than anything he personally has done or said. Such politics is way above my pay grade, but to me the opposition to his nomination is unfortunate in both substance and appearance.

In light of the stalling of his federal nomination, Judge Lopez is running hard for reelection as Judge of the State Court of DeKalb County.

One of my college classmates at Furman was a shot putter named Bill Dimitrouleas from Florida. In 1992, President George H. W. Bush nominated him to be a judge of the U.S. District Court for the Southern District of Florida. That nomination died when Bush lost to Clinton in the 1992 election, and my classmate stayed on as a Circuit Court Judge in Fort Lauderdale. Later, in 1998, President Clinton renominated him, and since 1998 he has been the highly respected U.S. District Judge William P. Dimitrouleas.

While such bipartisan selection is rare, if Judge Lopez is not confirmed by the Senate this year, he would seem to be a great choice to be renominated if a Republican is elected President later this year.

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Ken Shigley is past president of the State Bar of Georgia, past chair of the Institute for Continuing Legal Education in Georgia Board of Trustees, and a board certified civil trial attorney of the National Board of Trial advocacy. After his term as State Bar president, the Georgia Judicial Nominating Commission included him in the “short list” for appointment to the Court of Appeals of Georgia.

The Next Generation Courts Commission was was given a broad mission to develop recommendations for future improvement in the Georgia judicial system and to turn those into concrete proposals for legislation, budget proposals and court rules. We were determined that it not just issue a report that would be filed away. That is why we included legislators and judges who would be able to put recommendations into action.

Judge Stephens quipped that in 20 years, he and I may be going to Piccadilly Cafeteria at 5 PM for blue plate special suppers, and roaming a beach with metal detectors while wearing shorts with knee high black support socks with sandals. Jeff Foxworthy should be thankful that Judge Stephens did not choose to become a professional comedian.

Under Judge Stephens’ leadership, the commission divided into task forces charged with studying emerging technology and trends related to court systems involved with improved education, program improvement, business process, and funding for the courts.

After more than two years of hard work, The Next Generation Courts Commission has released its  final report, listing recommendations to be used by collectively by the judicial branch in collaboration with the legislature and State Bar of Georgia.  Here is a brief summary of the lengthy report:

Technology Recommendations:

To establish a statewide e-filing portal for electronic filing of civil case documents across all levels of court; promote electronic access to civil and criminal court records; create a web-based central registry of attorney conflicts and leaved of absence.

Program Improvement Recommendations:

To create centers within each judicial circuit for the use of low-income and self-represented litigants; use of standard forms throughout the state; expand Alternative Dispute Resolution programs; support the establishment of accountability courts.

Business Process Improvement Recommendations:

To outline a uniform approach for the clerk of court to maintain trial evidence; encourage collaboration between the Judicial Council and Board of Court Reporting and clerks of courts when developing rules and regulations; promote use of technology for interpretation and capture of the cort record; promote increased availability for interpretation services.

Education Recommendations:

To seek to fully-fund the Institute of Continuing Judicial Education through state funds; improve programs for judges, both on-site and remotely; provide training for new and experienced judges, as well as clerks, court administrators, and court support personnel; support efforts to make court procedures more transparent and navigable for self-represented litigants.

Funding Recommendations:

To increase state-based funding to provide statewide improvement; encourage legislative changes that allow for the currently established self-funded programs and user fees to be used for their intended purpose rather than going into the general revenue funds of state and local governments.

Judge Stephens who chaired the Commission noted, “We hope that the insight and recommendations presented will be met with not only understanding but also a healthy dose of skepticism. We do not have the solutions. Rather the solutions will come by working collaboratively towards a common vision for the future of the judicial system of Georgia.”

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 catastrophic personal injury and wrongful death.

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

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

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

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

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

The issue was whether it was error for prosecutors to withhold evidence that would have supported the defense argument that the murder defendant committed his crime while under an amphetamine psychosis. The state’s lawyer said, under intense questioning from the court, that the withheld evidence would not have benefited the defendant. It was in response to that remark that Justice Souter called her argument “utterly irrational.”

Of course, lawyers are not the only people who say things in the judicial process that are “utterly irrational.” Sometimes judges, too, say things that are utterly irrational.

 Ken Shigley is an Atlanta, Georgia trial attorney with a practice is focused on cases of catastrophic personal injury and wrongful death arising from commercial truck and bus accidents. He is a former chair of the Southeastern Motor Carrier Liability Institute, and is a frequent speaker at national continuing legal education programs on trucking liability cases. He has been rated as a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend Magazine), and a Certified Civil Trial Advocate (National Board of Trial Advocacy,).  Mr. Shigley is currently Secretary of the 40,000 member State Bar of Georgia.  To increase capacity for handling more and larger cases, he recently became “of counsel” with the law firm of Chambers, Aholt & Rickard which has an extensive trucking liability practice.

Senator Claire McCaskill of Missouri announced on the Senate floor she would oppose the bill unless the judicial pay raise  provision was stripped from the auto bailout. Sen. McCaskill is quoted as saying:

Wrong time. Wrong place. We have the highest unemployment in this country that we have had in decades…. Federal judges get lifetime appointments, and they never take a dime’s cut in pay.

I always enthusiastically support judges when they seek pay raises.  I strongly agree that they should be paid at a level that is competitive with what they would make in private practice. Ideally, they should be paid at least double their current salaries.

See this article about a speech by 11th Circuit Judge Peter Fay who points out that if judicial salaries had kept up with inflation since 1970, district court judges should  be making about $342,000, and that their counterparts in Great Britain are paid the equivalent of $318,168.

I agree with Judge Fay.

Of course, the idea of raising judicial salaries includes recognition of their own strong professional qualities and the probability that many of them could make more money if they left the bench to join a big law firm willing to pay for their experience, insights, prestige and possible influence with their former colleagues.  It may also include some consideration of the facts that they get paid every month, do not have wild fluctuations of income, have no entrepreneurial risk, and do not have to pay for office overhead or private health insurance with rapidly spiraling premium rates. And they are certainly not at risk of seeing all their hard-earned profits for a year or two suddenly evaporate because a   judge ignores the evidence and misconstrues the law in order to make an inscrutable ruling in favor of a former court staff member.

In good times, the disparity between private practice and judicial salaries is fairly obvious.  It is a more complex analysis in a recession when millions of Americans are out of work and/or facing foreclosure, even large law firms are laying off lawyers and staff, and many small firm and solo lawyers are struggling.

It is customary for members of Congress and federal judges to have the same salary.  Congress is set for a $5,000 raise on January 1, and the proposal was to give judges the same raise to maintain parity.

Perhaps in solidarity with the American people who are hurting now, Congress should give up its own pay raise for the duration of the recession, and then come back later  with a strong pay raise for both Congress and the judiciary.  At that point, it would be appropriate to increase the salaries of both well beyond a paltry $5,000 adjustment.

Ken Shigley is an Atlanta, Georgia trial attorney with a practice is focused on cases of catastrophic personal injury and wrongful death arising from commercial truck and bus accidents. He is a former chair of the Southeastern Motor Carrier Liability Institute, and is a frequent speaker at national continuing legal education programs on trucking liability cases. He has been rated as a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend Magazine), and a Certified Civil Trial Advocate (National Board of Trial Advocacy,).  Mr. Shigley is currently Secretary of the 40,000 member State Bar of Georgia.  To increase capacity for handling more and larger cases, he recently became “of counsel” with the law firm of Chambers, Aholt & Rickard which has an extensive trucking liability practice.

Now we learn that a well-deserved and totally uncontroversial cost of living adjustment for federal judges has been tucked into the automobile manufacturers bailout legislation. Under this proposal, US district court judges and members of Congress, both of whom earn $169,300 a year, will get a $5,000 raise on January 1, and  are expected to be awarded a 2.8 percent raise next year.

 Ken Shigley is an Atlanta, Georgia trial attorney with a practice is focused on cases of catastrophic personal injury and wrongful death arising from commercial truck and bus accidents. He is a former chair of the Southeastern Motor Carrier Liability Institute, and is a frequent speaker at national continuing legal education programs on trucking liability cases. He has been rated as a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend Magazine), and a Certified Civil Trial Advocate (National Board of Trial Advocacy,).  Mr. Shigley is currently Secretary of the 40,000 member State Bar of Georgia.  To increase capacity for handling more and larger cases, he recently became “of counsel” with the law firm of Chambers, Aholt & Rickard which has an extensive trucking liability practice.

When representing truck drivers injured by the negligence of operators of “four wheelers,” we always check to find out if the trucking company’s insurance policy includes uninsured / underinsured motorist (UM) coverage for the truck driver. Some carry UM coverage equal to their liability coverage.
 

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia and selectively in other states, in strict compliance with the multijurisdictional practice and pro hac vice admission rules in each state.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

SUPPLEMENT TO APRIL 10, 2008 ORDER

As Defendants note, I did state that I was “as confident as a Christian with four aces” with respect to my FDA preemption ruling. In view of the United States Supreme Court’s decision in Riegel v. Medtronic, Inc., 1128 S. Ct. 999 (2008). and other recent appellate decisions, my confidence, while still in place, is at a lower level.

It appears to me that an expansive reading of preemption is a part of the overall “assault upon the citadel of the right to trial by jury” (to paraphrase Cardozo). The finer points of the vice of too much preemption are well presented in Justice Ginsberg’s dissent in Riegel, and by Judge Thomas Ambro in his dissent in Colacicco v. Apotex, 22008 WL 927848, at *18-26 (3d Cir. April 8, 2008).  The thought underlying expansive preemption (“backdoor federalization”, Id. at 25.) is that bureaucratic experts are better at determining what is reasonable, what is too dangerous, etc., than are juries.
Over the past several years I believe all three branches of government have become more and more distrustful of juries. They seem to forget that a jury is a cross section of the citizens who elected them to office (or elected those who appointed them). In political campaigns these citizens are paragons of virtue; but when they are called for jury service, they somehow become
incapable of making important decisions. The language in the decisions favoring preemption is high flown; but, at bottom, it reflects distrust of the randomly selected citizens who sit on juries.

Perhaps our public officials, including judges, have read too much Plato and too little Alexis de Tocqueville. Trial by jury is the essence of government reposed in the people. We should trust this institution in fact, not just in word.

IT IS SO ORDERED this 16th day of April, 2008.
/s/ Wm. R. Wilson, Jr.
UNITED STATES DISTRICT JUDGE

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that “compares the lawyer’s services with other lawyers’ services.” Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison “can be factually substantiated.”

The “Super Lawyers,” “Legal Elite,” and “Preeminent Lawyers” lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

Daubert was designed to exclude “junk science.” It was never intended to keep from the jury the kind of evidence scientists regularly rely on in forming opinions of causality simply because such evidence is not definitive. The legal standard, after all, is preponderance of the evidence, i.e., more-probable-than-not, and that applies to causality as to any other element of a tort cause of action. Rule 702, a rule of threshold admissibility, should not be transformed into a rule for imposing a more exacting standard of causality than more-probable-than-not simply because scientific issues are involved.

It is widely accepted that a “physician may be asked to testify about the physical condition of a plaintiff, diagnosis, treatment, causes of the plaintiff’s condition, or prognosis.” Fed. Jud. Ctr., Reference Manual on Scientific Evidence 439 (2d Ed.). In clinical medicine, courts generally agree that under Daubert the methodology and data that diagnosing and treating physicians reasonably consider good grounds for opinions or inferences in medical practice are sufficiently reliable to form the basis of a qualified medical expert’s testimony in court. See 3 WEINSTEIN & BERGER, WEINSTEIN’S EVIDENCE 703[03], p. 703-24 et seq.(Rel.47-7/93 Pub.803); 2 Graham, Handbook of Federal Evidence § 702.5 at 79 (4th ed.1996); Fenner at 1009.
In Westbury v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir 1999), the appellate court affirmed a trial court’s decision to admit the opinion testimony of a treating physician, finding that the physicians’ differential diagnosis based on temporal relationship between exposure and onset of symptoms – without the benefit of epidemiological studies, peer-reviewed published studies, animal studies, or laboratory data – that workplace exposure to a talcum powder caused a sinus problem. In allowing the physician’s testimony, the court noted:

[T]he court should be mindful that Rule 702 was intended to liberalize the introduction of relevant expert evidence. . . . And, the court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. . . . As with all other admissible evidence, expert testimony is subject to being tested by “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. . . . [W]hile precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiff’s exposure are beneficial, such evidence is not always available, or necessary, to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert’s opinion on causation.

Last fall, in Flowers v. Wal-Mart, 2005 WL 2787101, decided 10/27/05, Judge Royal in the Middle District of Georgia held:

It is significant in this case that Dr. Dicks is Mr. Flowers’s treating physician, not simply an expert who makes a living providing opinion testimony or one retained for purposes of litigation to provide an opinion based on facts presumed to be in evidence. His examination and diagnosis were part of his routine activities as a doctor, which should not be subject to an extensive analysis under Daubert and Kumho Tire. Though Daubertand Rule 702 require district courts to exercise a “gatekeeper” role as to expert testimony, it is generally appropriate “to avoid unnecessary ‘reliability’ proceedings in ordinary cases where the reliability of an expert’s methods is properly taken for granted.” Kumho Tire, 526 U.S. at 152. This is just such an ordinary case in which a treating physician offers a medical opinion that a fall from a ladder onto a concrete floor aggravated a back injury.

Lawyers should not be intimidated by frivolous Daubert motions, and should not let opponents trick judges into excluding perfectly legitimate, routine medical evidence with junk motions fraudulently using the rhetoric of “junk science.”

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

Ken Shigley represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “Super Lawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is President-Elect of the State Bar of Georgia (2011-12), a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks). He and Sally have been married since 1983, and are the proud parnts of two young adults, Anne Shigley and Ken Shigley, Jr.