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        <title><![CDATA[Georgia Business Litigation - Johnson & Ward]]></title>
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                <title><![CDATA[When Is the Fine Print Too Fine?]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/when-is-the-fine-print-too-fine/</link>
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                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Thu, 20 Nov 2014 20:38:44 GMT</pubDate>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                
                
                
                <description><![CDATA[<p>There is an old maxim that, “What big print giveth the fine print taketh away.” In a case involving a used car sale, our Georgia Supreme Court this week said, “not so fast.” To make out a claim at common law for fraud, a plaintiff must show not only that he relied upon some misrepresentation,&hellip;</p>
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                <content:encoded><![CDATA[
<div class="wp-block-image"><figure class="is-resized aligncenter"><img decoding="async" alt="" src="/static/2026/10/4c_file0001073676107-1-300x224-1.jpg" style="width:300px;height:224px" /></figure></div><p class="wp-block-paragraph"></p>

<p class="wp-block-paragraph">There is an old maxim that, “What big print giveth the fine print taketh away.” In a case involving a used car sale, our <a href="http://www.gasupreme.us/" rel="noopener noreferrer" target="_blank">Georgia Supreme Court</a> this week said, “not so fast.”</p>
<p class="wp-block-paragraph">To make out a claim at common law for fraud, a plaintiff must show not only that he relied upon some misrepresentation, but he must show as well that his reliance was reasonable or justifiable.  In the case of <a href="http://caselaw.findlaw.com/ga-court-of-appeals/1638127.html" rel="noopener noreferrer" target="_blank"><em>Raysoni v. Payless Auto Deals</em>,</a> LLC, 2014 WL 6090438, decided by the Supreme Court of Georgia on November 17, 2014, the question was whether reliance upon a used car salesman’s representations was reasonable despite fine print disclaimers.</p>
<p class="wp-block-paragraph">Mr. Raysoni went to a used car lot. He asked a salesman whether the vehicle in which he was interested had ever been in a wreck or damaged. The salesman told him it had not, and gave a Carfax report that showed no damage to the vehicle and no indication that it had been involved in any wreck. Relying on these representations, he bought the vehicle. A couple of months later, Raysoni learned that the minivan, in fact, had been in a wreck and had sustained frame damage as a result.</p>
<p class="wp-block-paragraph">When he attempted to return the vehicle and rescind the purchase, the used car dealer refused. It relied upon fine print in the sales contract, which included, “NO SALESMAN VERBAL REPRESENTATION IS BINDING ON THE COMPANY,” “CUSTOMER SHOULD NOTE THAT THIS VEHICLE WAS ANNOUNCED HAVING UNIBODY DAMAGE AT THE AUCTION,” and “WE STRONGLY RECOMMEND CUSTOMERS SHOULD GET VEHICLE INSPECTED BY A MECHANIC OF THEIR CHOICE BEFORE MAKING THE PURCHASE.”</p>
<p class="wp-block-paragraph">Finding it was a jury question whether reliance upon the salesman’s representations was reasonable, Justice Keith Blackwell noted for the Court:</p>
<p class="wp-block-paragraph"><em>No one should make the mistake of thinking, however, that capitalization always and necessarily renders the capitalized language conspicuous and prominent. In this case, the entirety of the fine print appears in capital letters, all in a relatively small font, rendering it difficult for the author of this opinion, among others, to read it. Moreover, the capitalized disclaimers are mixed with a hodgepodge of other seemingly unrelated, boilerplate contractual provisions—provisions about, for instance, a daily storage fee and a restocking charge for returned vehicles—all of which are capitalized and in the same small font.</em></p>
<p class="wp-block-paragraph">Plaintiff’s lawyers estimated the font size of that fine print was 5.6.  I dare you to read anything in 5.6 font without a magnifying glass.</p>
<p class="wp-block-paragraph">Kudos to my friends Mike Flinn of Carrollton and Charles Cork of Macon for their diligence in taking this consumer issue to the Supreme Court. While I generally refer “lemon car” cases to Mike Flinn, the judicial disapproval of obscure fine print to contradict a salesman’s representations to a consumer.</p>
<p class="wp-block-paragraph">The case vaguely reminds me of a one I tried in my past life as an insurance defense lawyer. In an employee dishonestly insurance claim by a car dealer, I was representing the insurance company in its own name. My chief witness was the bean-counting dweeb of a claims adjuster from central casting. And my task was to try to persuade the jury that a used car salesperson was honest despite overwhelming and incontrovertible evidence to the contrary. I never understood why the insurer I represented didn’t just settle that case.  It was not much fun to stand up and take that beating.</p>
<p class="wp-block-paragraph"><em><a href="http://www.atlantainjurylawyer.com/attorney-lawyer-2225709.html" rel="noopener noreferrer" target="_blank">Ken Shigley</a> is an Atlanta-based <a href="http://www.atlantainjurylawyer.com/attorney-lawyer-2260712.html" rel="noopener noreferrer" target="_blank">personal injury</a> and <a href="http://www.atlantainjurylawyer.com/wrongful-death-attorney-lawyer-1008540.html" rel="noopener noreferrer" target="_blank">wrongful death</a> trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy.</em></p>
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                <title><![CDATA[A Trap Door in Georgia Renewal Actions for Uninsured Motorist Insurance Coverage]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/a-trap-door-in-georgia-renewal-actions-for-uninsured-motorist-insurance-coverage/</link>
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                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Mon, 04 Jun 2012 19:54:39 GMT</pubDate>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                    <category><![CDATA[Insurance Law]]></category>
                
                    <category><![CDATA[Recent Tort Cases]]></category>
                
                    <category><![CDATA[State Procedure]]></category>
                
                    <category><![CDATA[Uncategorized]]></category>
                
                
                
                
                <description><![CDATA[<p>Georgia law allows a plaintiff in a civil lawsuit one chance to dismiss without prejudice and refile. The renewal statute, OCGA § 9–2–61, allows a plaintiff who voluntarily dismisses a timely filed suit to file suit within six months, regardless of whether the statute of limitations has run. However, a case decided by the Georgia&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">Georgia law allows a plaintiff in a civil lawsuit one chance to dismiss without prejudice and refile. The renewal statute, OCGA § 9–2–61, allows a plaintiff who voluntarily dismisses a timely filed suit to file suit within six months, regardless of whether the statute of limitations has run.</p>

<p class="wp-block-paragraph">However, a case decided by the Georgia Court of Appeals on May 26, 2012 reveals a trap door for the unwary in the exercise of this right.<em> Cox v. Progressive Bayside Ins. Co.</em>, __ Ga. App. __, __ S.E.2d __, 2012 WL 1860704 (Ga.App., 2012).</p>
<p class="wp-block-paragraph">In that case, Cox filed suit against Dobson within the two year limitation period for her injuries. Dobson was an uninsured motorist. Cox successfully had Dobson personally served with the suit papers.</p>
<p class="wp-block-paragraph">After expiration of the limitation period, Cox dismissed without prejudice and refiled within six months pursuant to OCGA § 9–2–61.  However, because Dobson had diedm Cox did not get personal service on him.  Eight days after the renewal action was filed, the sheriff reported that Dobson was dead.</p>
<p class="wp-block-paragraph">If Cox had promptly asked the probate court to appoint an adminstrator for the estate of Dobson, filed a motion to substitute the administrator as defendant, and served the administrator with the lawsuit, Cox would have been OK></p>
<p class="wp-block-paragraph">Progressive, as uninsured motorist (UM) insurance carrier filed a suggestion of death. Cox failed to file a motion to substitute an executor or adminstrator for Dobson. Eleven months later, the court granted a motion to dismiss.</p>
<p class="wp-block-paragraph">The Court of Appeals, in a decision written by Presiding Judge Mikell, held:</p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p class="wp-block-paragraph">Cox did not meet the procedural requirements of perfecting service against Dodson because he was deceased at the time she filed the renewal suit. In Georgia, a deceased person cannot be a party to legal proceedings and any suit brought against a deceased defendant is a nullity.<a href="http://web2.westlaw.com/result/documenttext.aspx?ss=CNT&cfid=1&historytype=F&mt=Georgia&tnprpdd=None&showhitsonly=False&utid=1&method=TNC&db=GA-CS&cnt=DOC&nn=-1&rlt=CLID_QRYRLT3638954291246&rltdb=CLID_DB2999853291246&service=Search&eq=Welcome%2fGeorgia&rp=%2fWelcome%2fGeorgia%2fdefault.wl&n=4&query=%28TORT+NEGLIGEN%21%29+%26+da%282012%29&tnprpds=TaxNewsFIT&scxt=WL&cxt=DC&vr=2.0&rlti=1&sv=Split&mqv=d&rltkclimit=None&fn=_top&rs=WLW12.04#B00552027752960" rel="noopener noreferrer" target="_blank"><sup>FN5</sup></a> The fact that Cox may have perfected service against Dodson in the prior suit does not affect the fact that she has not perfected service against him in the renewal suit and accordingly, no action was ever commenced. . . . Because the renewed complaint was filed against a deceased person and Cox never attempted to substitute defendants prior to the trial court’s hearing on the motion to dismiss, we find that the trial court did not err in denying Cox’s request to substitute parties.</p>
</blockquote>
<p class="wp-block-paragraph">In a typical uninsured motorist case where the tortfeasor has died, estate administration is likely to be as absent as liability insurance. To enforce rights under uninsured motorist insurance coverage, it may be necessary to have a county administrator appointed as administrator of the decedent’s estate in probate court. The administrator can be served or acknowledge service in the injury suit. The plaintiff’s attorney must also separately serve the auto insurance company under the UM coverage.</p>
<p class="wp-block-paragraph">If the deceased tortfeasor was from outside Georgia, questions might arise about jurisdiction of a Georgia probate court to appoint an administrator for this purpose. However, in <em>Tweed v. Houghton</em>, 103 Ga.App. 57, 118 S.E.2d 496 (1961), the court held that potential liability insurance coverage could be an asset of the estate warranting appointment of an administrator in a county where there would have been venue against the decedent nonresident motorist if he had lived. If, for example, there had been coverage on the decedent’s vehicle which was either inadequate or denied due to nonpayment, that can provide the basis to have an administrator of the estate appointed and served. Then, when the UM carrier is served, it cannot defend on the ground that the tortfeasor’s estate was not served.</p>
<p class="wp-block-paragraph">In serving any lawsuit, it is important to read the return of service papers that come back from the sheriff. If there is a note that the defendant could not be served, it is vitally important to follow up. If the defendant has died, it is important to promptly investigate and if necessary get the county administrator appointed so that there is someone who can be served with process on behalf of the estate.</p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow">
<p class="wp-block-paragraph"> —————————————————<br />
Ken Shigley is Immediate Past President of the State Bar of Georgia and currently chair of the board of the Institute for Continuing Legal Education in Georgia, so he is well respected among judges, lawyers and court officials across Georgia. He has successfully handled cases in many of Georgia’s 159 counties from the mountains to the sea. Mr. Shigley has dual board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification. He has spoken on  continuing legal education programs from coast to coast and is now on the boards of the American Association for Justice Motor Vehicle & Premises Liability Section and Trucking Litigation Group.</p>
</blockquote>
 
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                <title><![CDATA[The Learning Curve of a Bar President]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/moving-in-different-circles/</link>
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                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Wed, 21 Mar 2012 07:18:13 GMT</pubDate>
                
                    <category><![CDATA[Back Injury]]></category>
                
                    <category><![CDATA[Bar Organizations]]></category>
                
                    <category><![CDATA[Brain Injury]]></category>
                
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                    <category><![CDATA[Ethics]]></category>
                
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                    <category><![CDATA[Truck Wreck of the Day]]></category>
                
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                <description><![CDATA[<p>In the past 10 days this plaintiffs’ trial lawyer, in the capacity of State Bar of Georgia president, has co-presided over a joint meeting of the State Bar Executive Committee and the Georgia Supreme Court, had a joint press conference with the Attorney General of Georgia and spoke at a lunch meeting that included general&hellip;</p>
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                <content:encoded><![CDATA[
<p class="wp-block-paragraph">In the past 10 days this plaintiffs’ trial lawyer, in the capacity of State Bar of Georgia president, has co-presided over a joint meeting of the State Bar Executive Committee and the Georgia Supreme Court, had a joint press conference with the Attorney General of Georgia and spoke at a lunch meeting that included general counsels of some of Georgia’s leading corporations. In 75 days, I will complete my term as State Bar president and get back to practicing law full-time.</p>

<p class="wp-block-paragraph">I do not expect any favoritism from anyone as cases must be decided on their merits.  But if a friend or family member has a catastrophic injury or wrongful death case, would it be smarter to hire a lawyer based on a sleazy TV ad or to hire one who has recognized credentials and is known to decision makers?</p>
<p class="wp-block-paragraph">Whether you choose me or someone else, by all means choose a serious lawyer for any serious case. Understand that the lawyers who spend millions on TV ads operate settlement mills, never take cases to trial, and insurance companies know they will generally settle for 10% of fair case value.</p>
 
 
 
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                <title><![CDATA[Trial Preparation – Video Recording of Depositions]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/trial-preparation-video-recording-of-depositions/</link>
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                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Fri, 30 Sep 2011 03:25:05 GMT</pubDate>
                
                    <category><![CDATA[Back Injury]]></category>
                
                    <category><![CDATA[Brain Injury]]></category>
                
                    <category><![CDATA[Burn Injuries]]></category>
                
                    <category><![CDATA[Bus Accidents]]></category>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                    <category><![CDATA[Georgia injury news]]></category>
                
                    <category><![CDATA[Rules of the Road]]></category>
                
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                    <category><![CDATA[Wrongful Death]]></category>
                
                
                
                
                <description><![CDATA[<p>My law practice is focused on commercial trucking accidents, personal injury and wrongful death cases for plaintiffs. As president of the State Bar of Georgia, I have many occasions to speak to groups, both in and out of my practice area. The following is excerpted from my presentation — “Trial Preparation: 30 tips in 30&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">My law practice is focused on commercial trucking accidents,  personal injury and wrongful death cases for plaintiffs. As president of the State Bar of  Georgia, I have many occasions to speak to groups, both in and out of my  practice area. The following is excerpted from my  presentation —  “Trial Preparation: 30 tips in 30 Minutes” – at the  Georgia Law of  Torts seminar at Mercer University Law School in Macon on  September 23,  2011.</p>

<p class="wp-block-paragraph"><strong>12. </strong><strong>Video recording of defendant depositions.</strong></p>
<p class="wp-block-paragraph">A party may videotape any deposition upon notice that it will be so recorded. OCGA 9-11-30 (b)(4); FRCP 30 (b)(3). A deposition of a party may be used by any adverse party for any purpose, including substantive evidence, without any foundation that the party is unavailable to testify, including reading or playing video of portions in the case in chief, not merely for impeachment. OCGA § 9-11-32(a); Fed.R.Civ.P. 32(a)(2); <em>Griffin</em><em> v. Bankston</em>, 295 Ga.App. 387, 391, 671 S.E.2d 873, 877 (2008).  See also,   <em>State Farm Mut. Auto. Ins. Co. v. Lincow,</em> 715 F.Supp.2d 617, (E.D.Pa.,2010); <em>Northfield Ins. Co. v. Royal Surplus Lines Ins. Co</em>., 2003 WL 25948971 (C.D.Cal.,2003); <em>In re McLaren</em>, 136 B.R. 705 (Bkrtcy.N.D.Ohio,1992); <em>Roark v. Rydell</em>, 174 Ohio App.3d 186, 881 N.E.2d 333 (Ohio App. 1 Dist., 2007); <em>Devenyns v. Hartig</em><strong>, </strong>983 P.2d 63 (Colo.App.,1998); <em>State v Metz</em><strong>, </strong>241 A.D.2d 192, 671 N.Y.S.2d 79 (N.Y.A.D. 1 Dept.,1998); <em>Matter of the Adoption of N.A.P.,</em> 23 Kan.App.2d 257, 930 P.2d 609 (Kan.App.,1996).</p>
<p class="wp-block-paragraph">Therefore, in any substantial case give notice of video recording of defendant depositions, and request synchronization of stenographic transcript and video in DVT format that may be easily edited on your computer. Be extremely specific in communicating to the court reporter and videographer the request for synchronized video and transcript. Not less than a month before trial, prepare video clips of adverse parties to play in the case in chief at trial.</p>
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                <title><![CDATA[Trial Preparation – Propose Stipulation That Attorneys Can Issue Deposition Subpoenas]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/trial-preparation-propose-stipulation-that-attorneys-can-issue-deposition-subpoenas/</link>
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                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Fri, 30 Sep 2011 03:21:26 GMT</pubDate>
                
                    <category><![CDATA[Back Injury]]></category>
                
                    <category><![CDATA[Brain Injury]]></category>
                
                    <category><![CDATA[Burn Injuries]]></category>
                
                    <category><![CDATA[Bus Accidents]]></category>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                    <category><![CDATA[Legal Info]]></category>
                
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                <description><![CDATA[<p>My law practice is focused on personal injury, wrongful death and commercial trucking law practice. As president of the State Bar of Georgia, I have many occasions to speak to groups, both in and out of my practice area. The following is excerpted from my presentation — “Trial Preparation: 30 tips in 30 Minutes” –&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">My law practice is focused on personal injury, wrongful death and  commercial trucking law practice. As president of the State Bar of Georgia, I have many occasions to speak to groups, both in and out of my practice area. The following is excerpted from my  presentation — “Trial Preparation: 30 tips in 30 Minutes” – at the  Georgia Law of Torts seminar at Mercer University Law School in Macon on  September 23, 2011.</p>

<p class="wp-block-paragraph"><strong>11. </strong><strong>Propose a stipulation that attorneys issue deposition subpoenas. </strong></p>
<p class="wp-block-paragraph">While federal law authorizes attorneys as officers of the court to issue subpoenas on standard forms, current Georgia law only allows deposition subpoenas issued and signed by counsel if there has been a stipulation of counsel pursuant to OCGA 9-11-45. Otherwise, subpoenas must be obtained from the Clerk. Propose such a stipulation early in the case in order to avoid a mad scramble to get subpoenas from the clerk for depositions or for trial.</p>
<p class="wp-block-paragraph">Note that the need for such a stipulation will be eliminated on January 1, 2013, the effective date of the new Evidence Code. The new OCGA 24-13-21(d) will provide that “An attorney who is counsel of record in a proceeding may issue and sign a subpoena obtained by electronic or other means from the clerk of court as an officer of a court for any deposition, hearing, or trial held in conjunction with such proceeding.”</p>
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                <title><![CDATA[Trial Preparation – Draft Jury Instructions Early]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/trial-preparation-draft-jury-instructions-early/</link>
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                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Fri, 30 Sep 2011 03:15:02 GMT</pubDate>
                
                    <category><![CDATA[Brain Injury]]></category>
                
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                    <category><![CDATA[Bus Accidents]]></category>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
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                <description><![CDATA[<p>As president of the State Bar of Georgia, I often have occasion to speak at events that extend beyond my own personal injury, wrongful death and commercial trucking law practice. The following is excerpted from my presentation — “Trial Preparation: 30 tips in 30 Minutes” – at the Georgia Law of Torts seminar at Mercer&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">As president of the State Bar of Georgia, I often have occasion to speak  at events that extend beyond my own personal injury, wrongful death and  commercial trucking law practice. The following is excerpted from my  presentation — “Trial Preparation: 30 tips in 30 Minutes” – at the  Georgia Law of Torts seminar at Mercer University Law School in Macon on  September 23, 2011.</p>

<p class="wp-block-paragraph"><strong>7. Draft jury instructions early.</strong></p>
<p class="wp-block-paragraph">Judges are understandably most comfortable using pattern jury instructions. Prior to drafting the complaint and discovery, compile all the applicable pattern jury instructions and prepare a preliminary draft of additional charges not covered by the pattern.  Research statutes and case law rather than simply relying solely upon patterns and forms. Then develop pleadings, interrogatories and deposition questions with the probable jury instructions in mind.</p>
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                <title><![CDATA[Trial Preparation – Begin with the End in View.]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/trial-preparation-begin-with-the-end-in-view/</link>
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                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Fri, 30 Sep 2011 03:03:18 GMT</pubDate>
                
                    <category><![CDATA[Back Injury]]></category>
                
                    <category><![CDATA[Bar Organizations]]></category>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                    <category><![CDATA[Legal Profession]]></category>
                
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                    <category><![CDATA[Wrongful Death]]></category>
                
                
                
                
                <description><![CDATA[<p>As president of the State Bar of Georgia, I often have occasion to speak at events that extend beyond my own personal injury, wrongful death and commercial trucking law practice. The following is excerpted from my presentation — “Trial Preparation: 30 tips in 30 Minutes” – at the Georgia Law of Torts seminar at Mercer&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">As president of the State Bar of Georgia, I often have occasion to speak at events that extend beyond my own personal injury, wrongful death and commercial trucking law practice. The following is excerpted from my presentation — “Trial Preparation: 30 tips in 30 Minutes” – at the Georgia Law of Torts seminar at Mercer University Law School in Macon on September 23, 2011. </p>

<p class="wp-block-paragraph"><strong>1. </strong><strong>Begin with the end in view.</strong></p>

<p class="wp-block-paragraph">It is tempting to assume that cases are likely to settle rather than go to trial. While most cases do settle, that assumption leads to laziness and lack of preparation. From the first phone call from a prospective client, evaluate and prepare the case with the assumption that you must be prepared to try the case. If the case would not play well at trial, it may be prudent to turn it down. This will protect you from taking cases that lack merit, clients who lack credibility, strategies that are not likely to be cost effective, and expenses that cannot be recovered. </p>
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                <title><![CDATA[Struggling with Rules on When Public Defenders Can Represent Co-Defendants]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/struggling-with-rules-on-when-public-defenders-can-represent-co-defendants/</link>
                <guid isPermaLink="true">https://www.atlantainjurylawyer.com/blog/struggling-with-rules-on-when-public-defenders-can-represent-co-defendants/</guid>
                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Fri, 30 Sep 2011 02:33:12 GMT</pubDate>
                
                    <category><![CDATA[Bar Organizations]]></category>
                
                    <category><![CDATA[Brain Injury]]></category>
                
                    <category><![CDATA[Burn Injuries]]></category>
                
                    <category><![CDATA[Bus Accidents]]></category>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                    <category><![CDATA[Georgia injury news]]></category>
                
                    <category><![CDATA[Legal Profession]]></category>
                
                    <category><![CDATA[Rules of the Road]]></category>
                
                    <category><![CDATA[Spinal Cord Injury]]></category>
                
                    <category><![CDATA[Tort Reform in Georgia]]></category>
                
                    <category><![CDATA[Trucking Accidents]]></category>
                
                    <category><![CDATA[Trucking Litigation]]></category>
                
                    <category><![CDATA[Trucking Rules]]></category>
                
                    <category><![CDATA[Trucking Technology]]></category>
                
                    <category><![CDATA[Wrongful Death]]></category>
                
                
                
                
                <description><![CDATA[<p>As president of the State Bar of Georgia, I have occasion to work on a number of issues and controversies beyond the scope of my own personal injury, wrongful death and commercial trucking accident trial practice.  The following is excerpted from an article by Kathleen Joyner in the Fulton County Daily Report on September 23,&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">As president of the State Bar of Georgia, I have occasion to work on a number of issues and controversies beyond the scope of my own personal injury, wrongful death and commercial trucking accident trial practice.  The following is excerpted from an article by Kathleen Joyner in the <a href="http://www.dailyreportonline.com/Editorial/News/singleEdit.asp?l=100309436991" rel="noopener noreferrer" target="_blank">Fulton County Daily Report</a> on September 23, 2011.</p>

<p class="wp-block-paragraph">———————-</p>
<p class="wp-block-paragraph"><strong>Bar committee OKs rule change</strong><br />
<em>Public defenders in same circuit would be allowed  to represent co-defendants under proposed amendment</em></p>
<p class="wp-block-paragraph">The State Bar of Georgia’s Disciplinary Rules and Procedures Committee  on Wednesday unanimously approved a rule change that would allow public  defenders in the same circuit to represent co-defendants unless specific  conflicts of interest are identified.</p>
<p class="wp-block-paragraph">The proposed amendment to  the Georgia Rules of Professional Conduct on imputed disqualification,  also known as Rule 1.10, states: “(d) A lawyer representing a client of a  public defender office shall not be disqualified under this rule  because of the representation by the office of another client in the  same or a substantially related matter unless there is a conflict as  determined by Rules 1.7, 1.8(f) or 1.9,” which determine conflicts of  interest, according to Bar President Kenneth L. Shigley.</p>
<p class="wp-block-paragraph">Backers  of the amendment hope it serves as a compromise in a debate that has  burned hot since April 2010, when the bar approved a formal advisory  opinion prohibiting intra-circuit representation of indigent criminal  co-defendants. Critics of that opinion, which is pending review by the  state Supreme Court, said it would result in higher costs for the  cash-strapped indigent defense system as more expensive outside lawyers  would need to be hired to resolve conflicts.</p>
<p class="wp-block-paragraph">But some lawyers questioned whether the proposed amendment would have any significant effect.</p>
<p class="wp-block-paragraph">On  Wednesday, Shigley said the new rules change allowing intracircuit  representation of co-defendants should help public defender offices  handling cases with multiple defendants where there is only a potential  conflict.”The proposed amendment to Rule of Professional Conduct  1.10 is a measured, moderate approach to representation of multiple  defendants in the public defender context,” Shigley said in a written  statement. “It recognizes the need for practical flexibility in  administration of the statewide public defender system, without  diminishing lawyers’ ethical standards or defendants’ rights to  vigorous, conflict-free representation.”</p>
<p class="wp-block-paragraph">. . . .</p>
<p class="wp-block-paragraph">The  proposed amendment will go to the bar’s Executive Committee, which is  scheduled to meet on Oct. 6 in Macon. Then, it would need the approval  of the bar’s Board of Governors, which will convene on Oct. 29 at Jekyll  Island, and finally the state Supreme Court before going into effect.</p>
<p class="wp-block-paragraph">The  state high court agreed to review the formal advisory opinion last  year, but in August it delayed any decision until January. Members of  the bar, as well as the Georgia Public Defender Standards Council, began  publicly discussing a rules change that would have exempted public  defenders from the conflict rules applied to private firms late this  summer.</p>
<p class="wp-block-paragraph">Georgia Public Defender Standards Council Director W.  Travis Sakrison spoke against the formal advisory opinion during  Wednesday’s hearing of the Disciplinary Rules and Procedures Committee.</p>
<p class="wp-block-paragraph">According  to Sakrison, the formal advisory opinion would require all public  defender offices to divest themselves immediately of all co-defendants  in cases where there may be a potential conflict. That rule would  balloon the number of conflict cases and drain the public defender  system of resources, he said. The estimated cost of finding new conflict  counsel would have required the GPDSC to ask the Legislature for  millions more in its budget, he said.</p>
<p class="wp-block-paragraph">Instead, many circuit public  defenders wanted their offices to have the ability to represent  co-defendants up until the point an actual conflict arose, as long as  proper ethical screens, such as separate computers and filing areas,  were in place the entire time. And then, if there were an actual  conflict, the public defender office could retain one of the  co-defendants.</p>
<p class="wp-block-paragraph">But supporters of the formal advisory opinion said  the opinion supported the existing rules, which already outline  conflicts and are meant to ensure adequate representation of indigent  criminal defendants—a statement the Disciplinary Rules and Procedures  Committee chairman, John G. Haubenreich, agreed with on Wednesday.”<em> . . . .<br />
</em></p>
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                <title><![CDATA[Georgia Legislators’ Proposal to Tax Legal Services May Have Unintended Consequences]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/georgia-legislators-proposal-to-tax-legal-services-may-have-unintended-consequences/</link>
                <guid isPermaLink="true">https://www.atlantainjurylawyer.com/blog/georgia-legislators-proposal-to-tax-legal-services-may-have-unintended-consequences/</guid>
                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Tue, 15 Jan 2008 00:08:02 GMT</pubDate>
                
                    <category><![CDATA[Bar Organizations]]></category>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Ethics]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                    <category><![CDATA[Georgia injury news]]></category>
                
                    <category><![CDATA[Legal Info]]></category>
                
                    <category><![CDATA[Tort Reform in Georgia]]></category>
                
                
                
                
                <description><![CDATA[<p>As a trial attorney handling serious injury and wrongful death cases in  Georgia, I have an intense interest in seeing that my clients are dealt with fairly, that the playing field is relatively level, and that the court system works reasonably well. Currently there is a proposal in the legislature to impose a sales tax&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">As a <a href="http://www.atlantainjurylawyer.com/attorney-lawyer-1008470.html" rel="noopener noreferrer" target="_blank">trial attorney</a> handling<a href="http://www.atlantainjurylawyer.com/injury-attorney-accident-lawyer-1008519.html" rel="noopener noreferrer" target="_blank"> serious injury</a> and <a href="http://www.atlantainjurylawyer.com/wrongful-death-attorney-lawyer-1008540.html" rel="noopener noreferrer" target="_blank">wrongful death</a> cases in  Georgia, I have an intense interest in seeing that my clients are dealt with fairly, that the playing field is relatively level, and that the court system works reasonably well.</p>

<p class="wp-block-paragraph">Currently there is a proposal in the legislature to impose a sales tax on services, including legal services, as part of a plan to eliminate property taxes for support of education. That proposal arises from deeply held feelings that the tax burden falls unfairly upon property owners. As a homeowner, I share that sentiment every time I receive a property tax bill. But as a parent whose children graduated from excellent public high schools, I know what a bargain that can be compared to private school tuition. Georgia should improve, and not diminish, support for quality public education.</p>
<p class="wp-block-paragraph">Whatever general revenue measures our legislators may choose to support the quality of public education needed to provide Georgia an economically competitive workforce, it is important to examine the ramifications in detail. Specifically regarding the proposed tax on legal services, our legislators should consider a broad range of potential <a href="http://www.nytimes.com/2008/01/20/magazine/20wwln-freak-t.html?pagewanted=1&_r=2&ref=magazine" rel="noopener noreferrer" target="_blank">unintended consequences</a> on our system of justice and the delivery of legal services.</p>
<p class="wp-block-paragraph"><strong><span style="text-decoration: underline">Conflict with duty of confidentiality</span></strong>. Under current enforcement statutes, the Georgia Department of Revenue, under its audit authority, could claim access to detailed client billing records which are confidential under Georgia Rule of Professional Conduct 1.6. This could create a serious conflict between lawyers’ confidentiality obligations to clients and the requirement to respond to audit requests.</p>
<p class="wp-block-paragraph"><span style="text-decoration: underline"><strong>Burden on individuals but not businesses or governments that litigate against them.</strong></span> Individual Georgia citizens would bear the entire burden of the tax as currently proposed, while governments, corporations and insurance companies who litigate against them would be entirely free from the tax. This would make the playing field even more uneven in favor of corporate and governmental litigants and against individual Georgians.</p>
<p class="wp-block-paragraph"><span style="text-decoration: underline"><strong>Economic incentive to shift legal services – and law firms’ work, staff and investment – outside Georgi</strong></span>a.  A tax on legal services would encourage sophisticated clients, and those in border communities, to use untaxed legal services outside Georgia. It would also create an incentive for Georgia law firms to perform more services outside Georgia, and to shift investment in facilities, staff and support services to other states. Given the ease of gaining admission in many other states by reciprocity, even the smallest firms might find it advantageous to do so. Determining which services are taxable in Georgia would be an administrative nightmare.</p>
<p class="wp-block-paragraph"><span style="text-decoration: underline"><strong>Burden on citizens’ constitutional right of access to courts.</strong></span> A tax on legal services would be a burden on the exercise of Georgia citizens’ basic, constitutional right of access to justice and to the courts.</p>
<p class="wp-block-paragraph"><span style="text-decoration: underline"><strong>“Misery tax”.</strong></span> The sales tax on legal services as proposed would amount to a “misery tax” levied on individuals and families in Georgia at times of misfortune and vulnerability. It is generally necessity rather than choice that leads Georgians to seek legal assistance in cases involving death, divorce, domestic abuse, end-of-life decisions, injury, accusation of criminal offenses, or bankruptcy.</p>
<p class="wp-block-paragraph"><span style="text-decoration: underline"><strong> Effect on injury cases.</strong></span> Recovery for bodily injury is not taxable under either federal or state income tax laws, as our lawmakers have long recognized that there is no profit when an injured person involuntarily exchanges good health for a specified amount of money. The tax on legal services would erode the injury victim’s recovery for such injury, thereby making it even more difficult – and potentially more expensive – for corporations and insurance companies to reach reasonable compromise settlements. Moreover, an Georgian injured on the job gets no more than $450 per week in workers compensation indemnity benefits. If an attorney is required to obtain the benefits, a 25% attorney fee of $112.50 per week leaves only $337.50 for the injured worker. (The weekly benefit was recently increased to $500 per week for new claims, but you get the idea.)  A tax on legal services would further erode that meager benefit, thus increasing pressure to raise workers compensation benefits, a cost which eventually would be passed on to Georgia businesses.</p>
<p class="wp-block-paragraph"><span style="text-decoration: underline"><strong>Experience of other states.</strong></span> Apparently only Hawaii, New Mexico, and South Dakota currently tax legal services. Florida and Massachusetts enacted such taxes, but promptly repealed the measures when they proved to be unpopular and difficult to administer. Several other states, including Maine, Maryland, Ohio, and Vermont, as well as the District of Columbia, rejected similar proposals.</p>
<p class="wp-block-paragraph"><span style="text-decoration: underline"><strong>Constitutional questions.</strong></span>  There are numerous unresolved questions as to the constitutionality of the proposed tax on legal services, which the State of Georgia might well have to litigate over the next several years, including but not limited to the following:</p>
<p class="wp-block-paragraph">    •    <span style="text-decoration: underline"><strong>Access to courts.</strong></span> Would the proposed tax on legal services  impermissibly burden  access to and use of the state or federal courts in violation of Art. 1, § 1, ¶ 9 Ga. Const. of 1983, Article III of the U.S. Constitution and the 5th, 6th and 14th      Amendments to the U.S. Constitution?<br />
    •    <span style="text-decoration: underline"><strong>Equal protection and due process</strong></span>. Would unequal treatment of individuals and corporations, whereby a tax would be imposed on an individuals party’s access to the courts but no tax would be imposed upon a corporate party in the same litigation, be a violation of the Georgia Constitution under Art. 1, § 1, ¶ II  (equal protection) and under Art. 1, § 1, ¶ I (due process of law), and the 14th Amendment to the U.S. Constitution?<br />
    •    <span style="text-decoration: underline"><strong>Separation of powers</strong></span>.  Would the proposed tax on legal services constitute an unauthorized regulation of the practice of law by the Legislature in violation of the constitutional guarantee of separation of powers under Art. 1, § 2, ¶ III of the Georgia  Constitution?<br />
    •    <span style="text-decoration: underline"><strong>Tax on litigation in federal courts may violate U.S.  Constitution Supremacy Clause. </strong></span> Would the proposed tax on legal services, in connection with litigation before the federal courts, violate the Supremacy Clause contained in Article VI of the U.S.  Constitution?<br />
    •    <span style="text-decoration: underline"><strong>Breach of confidentiality burdening right to counsel</strong></span>. Would the proposed tax on legal services breach the attorney-client privilege and confidentiality, and thus impermissibly burden the right to counsel under both Art. 1, § 1, ¶ I of the Georgia  Constitution and the 6th and 14th Amendments of the U.S. Constitution?<br />
    •    <span style="text-decoration: underline"><strong>Taxing some professions while exempting others may violate equal protection of law.</strong></span> Would imposing a tax on services performed by the legal, accounting, architectural and other professions, while exempting services rendered by the medical profession, be a violation of equal protection rights under Art. 1, § 1, ¶ II of the Georgia Constitution, and the 14th Amendment to the U.S.  Constitution?<br />
    •   <span style="text-decoration: underline"><strong> Burden on rights guaranteed in U.S. Constitution. </strong></span>Would the  proposed tax on legal services impermissibly burden the exercise  of rights secured by the 5th, 6th, and 8th Amendments to the U.S. Constitution?</p>
<p class="wp-block-paragraph">We should encourage efforts to make our system of taxation more fair and efficient. At the same time, we should be careful to avoid the “law of unintended consequences,” which could wreak havoc if a tax on legal services were enacted.</p>
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                <title><![CDATA[“Super Lawyer” Listing Still Ok in Georgia]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/super-lawyer-listing-still-ok-in-georgia/</link>
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                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Tue, 15 Aug 2006 06:33:54 GMT</pubDate>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Ethics]]></category>
                
                    <category><![CDATA[Expert Witness Rules]]></category>
                
                    <category><![CDATA[Federal Procedure]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                    <category><![CDATA[Georgia injury news]]></category>
                
                    <category><![CDATA[Injury Law]]></category>
                
                    <category><![CDATA[Insurance Law]]></category>
                
                    <category><![CDATA[Legal Info]]></category>
                
                    <category><![CDATA[Legislation]]></category>
                
                    <category><![CDATA[Recent Tort Cases]]></category>
                
                    <category><![CDATA[State Procedure]]></category>
                
                    <category><![CDATA[Tort Reform in Georgia]]></category>
                
                    <category><![CDATA[Trucking Accidents]]></category>
                
                    <category><![CDATA[Trucking Litigation]]></category>
                
                    <category><![CDATA[Trucking Rules]]></category>
                
                
                
                
                <description><![CDATA[<p>Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the “Super Lawyers” listings violate professional responsibility rules against ads that compare lawyers’ services or create an “unjustified expectation about results.” &hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the “Super Lawyers” listings violate professional responsibility rules against ads that compare lawyers’ services or create an “unjustified expectation about results.”  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the “Super Lawyers” issue of <em>Atlanta Magazine</em>, “Legal Elite” issue of <em>Georgia Trend</em> magazine, and the <em>Bar Register of Preeminent Lawyers</em>.</p>

<p class="wp-block-paragraph">However, the <em>Fulton County Daily Report </em>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.”</p>
<p class="wp-block-paragraph">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.</p>
<p class="wp-block-paragraph"></p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow"><p class="wp-block-paragraph">The <a href="http://www.atlantainjurylawyer.com/" rel="noopener noreferrer" target="_blank">Shigley Law Firm</a>  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 <em>Atlanta Magazine</em> and one of the “Legal Elite” in <em>Georgia Trend</em> 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.</p></blockquote>
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                <title><![CDATA[Sale of Business; Liquidated Damages for Breach of Contract]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/sale-of-business-liquidated-damages-for-breach-of-contract/</link>
                <guid isPermaLink="true">https://www.atlantainjurylawyer.com/blog/sale-of-business-liquidated-damages-for-breach-of-contract/</guid>
                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Fri, 15 Apr 2005 23:33:43 GMT</pubDate>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                
                
                
                <description><![CDATA[<p>And they call some tort cases frivolous!? In Caincare Inc. v. Ellison, decided 3/15/05 in the Georgia Court of Appeals, a contract for sale of a pharmacy provided liquidated damages if the buyer failed to cease all use of the old store name within six months. An employee programmed the old name in the header&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">And they call some tort cases frivolous!?<br />
In <em>Caincare Inc. v. Ellison</em>, decided 3/15/05 in the Georgia Court of Appeals, a contract for sale of a pharmacy provided liquidated damages if the buyer failed to cease all use of the old store name within six months.  An employee programmed the old name in the header generated by a fax machine which continued sending out faxes bearing the old name beyond the six months. When this was called to its attention, the new owner changed the header. However, the seller sued for breach of contract and sought liquidated damages totally unrelated to the scope of the alleged breach.<br />
The Court of Appeals flushed this frivolous case, but was polite enough not to use the phrase that a federal judge employed to describe an insurance company’s defense in a disability insurance case: “pure poppycock.”<br />
A liquidated damages provision for the misuse of the seller’s brand name in a sales agreement for an existing pharmacy was an unenforceable penalty, since the seller never adequately explained how the damages amount was calculated.  See the opinion below.</p>

<p class="wp-block-paragraph"></p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow"><p class="wp-block-paragraph">The <a href="http://atlantainjurylawyer.com" rel="noopener noreferrer" target="_blank">Shigley Law Firm </a> 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 <em>Atlanta Magazine</em> and one of the “Legal Elite” in <em>Georgia Trend</em> 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 <a href="http://www.atlantainjurylawyer.com/trucking-accident-attorney-lawyer-1008491.html" rel="noopener noreferrer" target="_blank">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</a>). </p></blockquote>
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                <title><![CDATA[Employment Contract – Covenant Not to Compete Held Unreasonable and Overbroad]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/employment-contract-covenant-not-to-compete-held-unreasonable-and-overbroad/</link>
                <guid isPermaLink="true">https://www.atlantainjurylawyer.com/blog/employment-contract-covenant-not-to-compete-held-unreasonable-and-overbroad/</guid>
                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Wed, 06 Apr 2005 23:49:02 GMT</pubDate>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                
                
                
                <description><![CDATA[<p>In Fellows v. All Star Inc., decided 3/17/05, the Georgia Court of Appeals held that the non-competition covenant in an employment contract was unreasonable and overbroad when it prohibited the former employees from contacting or soliciting any customer of the employer, no matter where located and no matter whether the employees had had contact with&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">In Fellows v. All Star Inc., decided 3/17/05, the Georgia Court of Appeals held that the non-competition covenant in an employment contract was unreasonable and overbroad when it prohibited the former employees from contacting or soliciting any customer of the employer, no matter where located and no matter whether the employees had had contact with those customers.<br />
The reasonableness of a non-compete clause is determined by applying a three-element test of duration, territorial coverage, and scope of prohibited activity. If not carefully and narrowly drafted, such covenants may well be unenforceable.  Broad, overreaching provisions may be effective to intimidate employees, but not enforceable when tested in court.<br />
See the court’s opinion below.</p>

<p class="wp-block-paragraph"></p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow"><p class="wp-block-paragraph">The <a href="http://atlantainjurylawyer.com" rel="noopener noreferrer" target="_blank">Shigley Law Firm </a> 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 <em>Atlanta Magazine</em> and one of the “Legal Elite” in <em>Georgia Trend</em> 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 <a href="http://www.atlantainjurylawyer.com/trucking-accident-attorney-lawyer-1008491.html" rel="noopener noreferrer" target="_blank">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</a>). </p></blockquote>
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                <title><![CDATA[Shareholder’s Rights, Covenants Not to Compete]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/shareholders-rights-covenants-not-to-compete/</link>
                <guid isPermaLink="true">https://www.atlantainjurylawyer.com/blog/shareholders-rights-covenants-not-to-compete/</guid>
                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Fri, 01 Apr 2005 23:18:52 GMT</pubDate>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                
                
                
                <description><![CDATA[<p>In Albany Bone & Joint Clinic PC v. Philip D. Hajek MD, the Georgia Court of Appeals ruled on 3/11/05 that a medical clinic’s bylaws, which entitled all departing shareholders to the book value of their stock, did not constitute a financial “penalty” on shareholders who left the clinic to work for a competitor. The&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">In <em>Albany Bone & Joint Clinic PC v. Philip D. Hajek MD,</em> the Georgia Court of Appeals ruled on 3/11/05 that a medical clinic’s bylaws, which entitled all departing shareholders to the book value of their stock, did not constitute a financial “penalty” on shareholders who left the clinic to work for a competitor. The corporate bylaws of the clinic did not constitute a non-competition covenant of the sort often seen in employment contracts.  See the court’s opinion below.</p>

<p class="wp-block-paragraph"></p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow"><p class="wp-block-paragraph">The <a href="http://atlantainjurylawyer.com" rel="noopener noreferrer" target="_blank">Shigley Law Firm </a> 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 <em>Atlanta Magazine</em> and one of the “Legal Elite” in <em>Georgia Trend</em> 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 <a href="http://www.atlantainjurylawyer.com/trucking-accident-attorney-lawyer-1008491.html" rel="noopener noreferrer" target="_blank">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</a>). </p></blockquote>
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                <title><![CDATA[A Win for the Home Team in Dentist’s Disability Insurance Case]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/a-win-for-the-home-team-in-dentists-disability-insurance-case/</link>
                <guid isPermaLink="true">https://www.atlantainjurylawyer.com/blog/a-win-for-the-home-team-in-dentists-disability-insurance-case/</guid>
                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Wed, 30 Mar 2005 23:49:21 GMT</pubDate>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Federal Procedure]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                    <category><![CDATA[Insurance Law]]></category>
                
                
                
                
                <description><![CDATA[<p>A federal court win for the home team was just published at Giddens v.The Equitable Life Assurance Society of the United States, 356 F.Supp.2d 1313(N.D.Ga.,2004) [Westlaw $$$]. We represented a dentist / real estate developer on a disability insurance claim after he had liver failure requiring a liver transplant at the Mayo Clinic. The insurance&hellip;</p>
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                <content:encoded><![CDATA[
<p class="wp-block-paragraph">A federal court win for the home team was just published at <em><a href="http://web2.westlaw.com/result/default.wl?cfid=1&tf=507&rltdb=CLID_DB1226303&vr=2.0&mt=Georgia&fcl=True&ss=CXT&blinkedcitelist=False&sv=Split&cxt=RL&n=9&rlt=CLID_QRYRLT1426303&eq=Welcome%2fGeorgia&scxt=WL&cmd=None&nstartlistitem=9&rp=%2fWelcome%2fGeorgia%2fdefault.wl&rs=WLW5.03&tc=6&sskey=CLID_SSSA1226303&dups=False&fn=_top&cnt=DOC&method=TNC&query=AT(SHIGLEY)&rlti=1&docsample=False&service=Search&db=GA-CS-ALL%2cCTA11-ALL%2cALLFEDS" rel="noopener noreferrer" target="_blank">Giddens v.The Equitable Life Assurance Society of the United States,</a></em> 356 F.Supp.2d 1313(N.D.Ga.,2004) [Westlaw $$$].<br />
We represented a dentist / real estate developer on a disability insurance claim after he had liver failure requiring a liver transplant at the Mayo Clinic. The insurance company took the position that during a long period of inability to work due to  undiagnosed illness prior to diagnosis of liver failure, he abandoned both of his occupations, and therefore no longer had an occupation from which to become disabled. We won summary judgment before the Honorable Richard Story, U.S. District Judge in Atlanta.<br />
The case is significant because it established Georgia precedent on (1) admissibility of disability opinions of treating physicians under Daubert despite lack of definitive tests and specialization in disability evaluation, with any deficiency going to weight rather than admissibility; and (2) rejection of insurer’s “occupation defense” that insured who was unable to work for extended time due to illness had abandoned occupation and therefore had no occupation from which to become disabled.<br />
The insurer has filed an appeal pending in 11th Circuit Court of Appeals. We hope the appeal produces a published decision affirming Judge Story’s order, which other policyholders may use as precedent against The Equitable throughout the United States.<br />
See the published order below:</p>

<p class="wp-block-paragraph"></p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow"><p class="wp-block-paragraph">The <a href="http://atlantainjurylawyer.com" rel="noopener noreferrer" target="_blank">Shigley Law Firm </a> 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 <em>Atlanta Magazine</em> and one of the “Legal Elite” in <em>Georgia Trend</em> 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 <a href="http://www.atlantainjurylawyer.com/trucking-accident-attorney-lawyer-1008491.html" rel="noopener noreferrer" target="_blank">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</a>). </p></blockquote>
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                <title><![CDATA[Work Product Privilege; Piercing Corporate Veil; Unjust Enrichment]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/work-product-privilege-piercing-corporate-veil-unjust-enrichment/</link>
                <guid isPermaLink="true">https://www.atlantainjurylawyer.com/blog/work-product-privilege-piercing-corporate-veil-unjust-enrichment/</guid>
                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Thu, 10 Mar 2005 22:29:37 GMT</pubDate>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                
                
                
                <description><![CDATA[<p>The McKesson – HBOC merger led to a legal morass due to allegations of accounting irregularies at HBOC. A few months later, McKesson discovered that, due to accounting fraud, HBOC’s common stock had been overvalued and that, consequently, McKesson had paid too much for it. McKesson hired a law firm and accounting firm to investigate&hellip;</p>
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                <content:encoded><![CDATA[
<p class="wp-block-paragraph">The McKesson – HBOC merger led to a legal morass due to allegations of accounting irregularies at HBOC.  A few months later, McKesson discovered that, due to accounting fraud, HBOC’s common stock had been overvalued and that, consequently, McKesson had paid too much for it. McKesson hired a law firm and accounting firm to investigate HBOC accounting practices, and voluntarily provided the audit documents to the SEC and the United States Attorney’s Office, both of which were conducting their own investigations of HBOC and McKesson. After a sharp decline in value of McKesson stock, many of McKesson’s shareholders, including plaintiffs in this case, who were former shareholders of HBOC, sued McKesson alleging that they had incurred stock losses as a result of the accounting fraud. McKesson filed a counterclaim seeking damages for unjust enrichment on the ground that the HBOC shareholders received more shares of McKesson stock than they were entitled to receive due to the accounting fraud. The trial court granted a motion to compel the production of the audit documents; it denied a motion to dismiss McKesson’s unjust enrichment counterclaim.<br />
The Georgia Supreme Court held: (1) the burden of proving a waiver of work-product protection lies on the party asserting the waiver; (2) the evidence supports the conclusion that McKesson waived work-product protection when it provided the audit documents to the SEC, as their confidentiality agreement was not airtight; (3) the former HBOC shareholders were not liable for unjust enrichment, as they were not accountable for the fraudulent acts of HBOC, and McKesson failed to allege that these shareholders controlled HBOC or used the corporate form to defraud McKesson. The mere fact that the shareholders may have received a windfall, in the form of additional shares of McKesson stock, at the time of the merger does not make them liable to McKesson. As the Ninth Circuit Court of Appeals said when it affirmed the dismissal of McKesson’s unjust enrichment claim in a related case, “[t]he sanctity of the corporate entity, as well as the policies militating against subjecting individual shareholders of a public company to liability for a merger gone bad, defeat McKesson’s effort to turn corporate law inside out.” McKesson HBOC v. New York State &c. Fund , 339 F3d 1087, 1093 (9th Cir. 2003). See <a href="http://www.dailyreportonline.com/Opinions/Court_Opinions/singleOpi.asp?individual_SQL=S04G1228" rel="noopener noreferrer" target="_blank">full text</a> (Fulton County Daily Report, subscription required.), and below:</p>

<p class="wp-block-paragraph"></p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow"><p class="wp-block-paragraph">The <a href="http://atlantainjurylawyer.com" rel="noopener noreferrer" target="_blank">Shigley Law Firm </a> 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 <em>Atlanta Magazine</em> and one of the “Legal Elite” in <em>Georgia Trend</em> 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 <a href="http://www.atlantainjurylawyer.com/trucking-accident-attorney-lawyer-1008491.html" rel="noopener noreferrer" target="_blank">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</a>). </p></blockquote>
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                <title><![CDATA[Breach of Contract, Implied Duty of Good Faith and Fair Dealing; Fraud]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/breach-of-contract-implied-duty-of-good-faith-and-fair-dealing-fraud/</link>
                <guid isPermaLink="true">https://www.atlantainjurylawyer.com/blog/breach-of-contract-implied-duty-of-good-faith-and-fair-dealing-fraud/</guid>
                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Thu, 10 Mar 2005 14:03:38 GMT</pubDate>
                
                    <category><![CDATA[Civil Litigation]]></category>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                
                
                
                <description><![CDATA[<p>Company A entered two intellectual property licensing agreements with Company B, but a year later was $3 million behind on payments and unable to pay the debt. Company B agreed to forgive the debt in exchange for software developed by Company A, with a provision that Company B would pay Company A net profits from&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">Company A entered two intellectual property licensing agreements with Company B, but a year later was $3 million behind on payments and unable to pay the debt. Company B agreed to forgive the debt in exchange for software developed by Company A, with a provision that Company B would pay Company A net profits from resale of the software. The contract included a 7-year non-competition and non-solication covenant, but no express provision requiring Company B to market the software.  Company B failed to sell the software or generate any royalties, and Company A sued Company B for breach of contract and common law fraud, alleging failure to undertake a good faith effort to market the software.  After a long analysis of the law and facts, the Court of Appeals held there was no violation of an implied obligation to market the software, no failure of consideration, and no breach of an implied duty of good faith and fair dealing. See <a href="http://www.dailyreportonline.com/Opinions/Court_Opinions/singleOpi.asp?search_Keywords=&individual_SQL=A04A21747335&userSel=BothBothAM0000Torts" rel="noopener noreferrer" target="_blank">WirelessMD Inc. v. Healthcare.com Corp</a> (Fulton County Daily Report, subscription required).  See text of decision below.</p>

<p class="wp-block-paragraph"></p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow"><p class="wp-block-paragraph">The <a href="http://atlantainjurylawyer.com" rel="noopener noreferrer" target="_blank">Shigley Law Firm </a> 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 <em>Atlanta Magazine</em> and one of the “Legal Elite” in <em>Georgia Trend</em> 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 <a href="http://www.atlantainjurylawyer.com/trucking-accident-attorney-lawyer-1008491.html" rel="noopener noreferrer" target="_blank">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</a>). </p></blockquote>
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                <title><![CDATA[Real Estate Litigation — Buyer’s Failure to Get Complete Environmental Assessment Treated as Contributory or Comparative Negligence]]></title>
                <link>https://www.atlantainjurylawyer.com/blog/real-estate-litigation-buyers-failure-to-get-complete-environmental-assessment-treated-as-contributory-or-comparative-negligence/</link>
                <guid isPermaLink="true">https://www.atlantainjurylawyer.com/blog/real-estate-litigation-buyers-failure-to-get-complete-environmental-assessment-treated-as-contributory-or-comparative-negligence/</guid>
                <dc:creator><![CDATA[Johnson & Ward Team]]></dc:creator>
                <pubDate>Sun, 06 Mar 2005 06:58:30 GMT</pubDate>
                
                    <category><![CDATA[Georgia Business Litigation]]></category>
                
                
                
                
                <description><![CDATA[<p>In Prime Retail Dev. Inc. v. Marbury Eng’g Co., Case # A04A1275, decided by the Georgia Court of Appeals on 11/19/04, the court held that evidence that the plaintiff chose to close on commercial real estate, which used to be a service station, without reviewing the Phase 1 environmental audit conducted by the defendant supported&hellip;</p>
]]></description>
                <content:encoded><![CDATA[
<p class="wp-block-paragraph">In Prime Retail Dev. Inc. v. Marbury Eng’g Co., Case # A04A1275, decided by the Georgia Court of Appeals on 11/19/04, the court held that evidence that the plaintiff chose to close on commercial real estate, which used to be a service station, without reviewing the Phase 1 environmental audit conducted by the defendant supported a jury charge on comparative and contributory negligence.<br />
The contract for purchase of the property included a provision permitting the buyer to conduct an environmental assessment, and to terminate the contract if environmental remediation costs would exceed $100,000.  The Buyer paid for a boundary survey and a non-intrusive “Phase I” environmental audit without taking any samples or performing any testing. To make a long story short, it was later determined that there was an abandoned underground storage tank on the property and accompanying petroleum contamination.<br />
In the subsequent litigation, in which the buyer lost at trial, the trial judge instructed the jury on defenses of contributory negligence and comparative negligence, limited to the claims of professional negligence and negligent misrepresentation, and not the contract claims. The buyer’s choice to proceed without a more complete environmental assessment was sufficient to support those jury instructions.</p>

<p class="wp-block-paragraph"></p>
<blockquote class="wp-block-quote is-layout-flow wp-block-quote-is-layout-flow"><p class="wp-block-paragraph">The <a href="http://atlantainjurylawyer.com" rel="noopener noreferrer" target="_blank">Shigley Law Firm </a> 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 <em>Atlanta Magazine</em> and one of the “Legal Elite” in <em>Georgia Trend</em> 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 <a href="http://www.atlantainjurylawyer.com/trucking-accident-attorney-lawyer-1008491.html" rel="noopener noreferrer" target="_blank">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</a>). </p></blockquote>
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