I don’t put a lot of stock in college rankings in US News and other publications. The formulas are too contrived, too subject to manipulation and present too great a temptation for institutions to misplace priorities in order to rank higher.

They can distort high education much as over emphasis on standardized testing has distorted elementary and secondary education, with school systems requiring teachers to teach for the test rather than teaching kids and inspiring creativity. But I am not running for public office and this is not a blog post about educational policy in America.

While I generally disdain the rankings, I still look at them. And if they make my alma mater look good, I might inappropriately brag a little.

The 2025 US News rankings of law schools rate the University of Georgai in a tie for #22 and Emory University Law School at #28.  

If you or a loved one have suffered a spinal cord injury in an accident that was someone else’s fault, submit our inquiry form or call us now at 404-253-7862.

Updated January 19, 2026

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Johnson & Ward 

 Johnson & Ward, was the first personal injury specialty law firm in Georgia from its founding in 1949. The firm’s founders were also founders of the Georgia Trial Lawyers Association. Built upon traditional, word-of-mouth referrals from other professionals, the firm has never needed to advertise on TV or billboards. Firm alumni have served as judges of Fulton County Superior Court and the Court of Appeals of Georgia, and current partners include former  presidents of the Atlanta Bar Association and State Bar of Georgia.

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Ken Shigley, an Emory Law graduate and a partner at Johnson & Ward, is a former president of the State Bar of Georgia. In 2019, he received the “Tradition of Excellence Award” for lifetime achievement in the legal profession. Mr. Shigley was lead author of eleven annual editions of a book about Georgia’s civil trial practice. He was the first Georgia lawyer to earn three national board certifications from the National Board of Trial Advocacy in trial practice and truck accident law. He graduated from Furman University and Emory University Law School. He also completed certificate programs in mediation and negotiation at Harvard Law School. A widower, he has two adult offspring. His son is a golf fitness trainer  and his daughter works in hospice with terminally ill patients. 

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

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

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

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

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

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

Ken Shigley was an Assistant District Attorney in Paulding County in the last 1970’s. he is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from auto accidents, commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

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

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

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

Interstate Motor Carriers

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

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

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

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

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

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

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

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

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

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

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

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

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

Contractor’s Conduct In Obedience To Employer’s Directions

Restatement (Second) of Torts  § 410 provides:

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

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

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

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

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

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

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

Negligence In Selection Of Contractor

Restatement (Second) of Torts  § 411 provides:

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

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

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

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

Failure To Inspect Work Of Contractor After Completion

Restatement (Second) of Torts  § 412 provides:

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

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

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

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

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

Restatement (Second) of Torts  § 413 states:

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

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

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

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

Negligence In Exercising Control Retained By Employer

Restatement (Second) of Torts  § 414 states:

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

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

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

 Restatement (Second) of Torts § 414A provides:

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

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

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

Restatement (Second) of Torts  § 415 states:

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

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

Harm Caused By Negligence Of A Carefully Selected Independent Contractor

Restatement (Second) of Torts § 416 states:

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

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

Work Done In Public Place

Restatement (Second) of Torts 417 states:

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

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

Maintenance Of Public Highways And Other Public Places

 Restatement (Second) of Torts § 418 provides:

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

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

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

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

 Restatement (Second) of Torts § 419 provides:

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

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

Repairs Gratuitously Undertaken By Lessor

 Restatement (Second) of Torts § 420 provides:

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

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

Restatement (Second) of Torts § 421 provides:

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

 Work On Buildings And Other Structures On Land

Restatement (Second) of Torts § 422 states:

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

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

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

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

Work Withdrawing Lateral Support

Restatement (Second) of Torts § 422A states:

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

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

Making Or Repair Of Instrumentalities Used In Highly Dangerous Activities

Restatement (Second) of Torts § 423 provides:

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

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

Precautions Required By Statute Or Regulation

  Restatement (Second) of Torts § 424 provides:

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

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

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

Restatement (Second) of Torts § 425 provides:

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

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

Negligence Collateral To Risk Of Doing The Work

 Restatement (Second) of Torts § 426 provides:

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

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

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

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

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

Negligence As To Danger Inherent In The Work

 Restatement (Second) of Torts § 427 states:

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

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

Work Involving Abnormally Dangerous Activity

 Restatement (Second) of Torts § 427A provides:

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

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

Work Likely To Involve Trespass Or Nuisance

 Restatement (Second) of Torts § 427B provides:

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

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

Public Franchise / Unreasonable Risk of Harm

Restatement (Second) of Torts § 428 states:

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

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

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

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

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

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

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

Restatement (Second) of Torts § 428 provides:

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

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

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

Ken Shigley is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. Work on all these types of cases requires expertise in insurance law.

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

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

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

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

State Bar President

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

Family

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

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

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

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

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

Nonpartisan Judicial Primary, May 22, 2018

When I started practicing law in 1977, hardly anyone but TV stations had video cameras, which at the time were heavy, tripod-mounted and extremely expensive. The idea of being able to play a video recording of an event in court would have seemed like science fiction if anyone had been so fanciful as to suggest  it.

But today investigation of any serious injury or wrongful death case involves a hunt for video recordings from a variety of sources. We hardly could not have imagined this in my early days as a prosecutor.

In 1983, the first consumer camcorders began to appear. They were big, shoulder-held devices that recorded on large VHS cassettes. We had one of those to make video of our children when they were small. By the 1990s, compact digital tape technology became the dominant format. Formats continued to evolve until now cheap, compact, solid state video recording devices are incorporated into ubiquitous smart phones. While I seldom use the video recording feature on my iPhone, I discovered in a pinch that I could video record an hour-long doctor’s deposition on my phone.

Now the checklist for investigation of every significant case includes the search for video recordings as well as still photos from a wide variety of sources. Some include:

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  Police dashcam video. We routinely send an open records request for dashcam video from police vehicles. We recently concluded a case in which the Georgia State Patrol dashcam camera recorded a trooper’s questioning of a truck driver through an interpreter. On that video, he admitted that he had been on the phone and did not see the line of stopped vehicles before he ran over them, killing three people. Through phone records we determined that he was on the phone for 25 minutes with someone in South America. In another case, we have video of the defendant driver’s field sobriety test, resistance of arrest and refusal to submit to a blood alcohol test. That’s all golden.
• Police bodycam video. Good police officers love body cameras that

  

  corroborate what they report and save them from false accusations about their conduct. In one case, we obtained bodycam recordings of a truck driver who killed five people admitting before he “lawyered up” that, “I must have fell asleep.”
• Truck and bus cameras. A growing number of trucks and buses have Drivecam or similar video units recording what happens inside a truck cab or bus. Like a store security video camera, it can protect the company from allegations when the driver did nothing wrong. But the evidence can be impressive when it works for the victims of negligence. We have a case in the office now in which video inside a bus in another state clearly demonstrates a driver’s negligence.
• Inside security surveillance video. Video can make or break an injury claim. When a golf cart in an airport terminal mowed down a woman in the concourse, we immediately sent an open records request for surveillance video in the area where it happened.  Two cameras caught from different angles the golf cart speeding through the concourse and crashing into our client without warning. That eliminated all potential defenses on liability, which surely would have been hard fought. On the other hand, when a potential client came to me with a story of how his leg was broken at a “big box” home improvement store, I contacted the chain’s general counsel and suggested that we look at the video together. I went to their office, sat down in the law department office and watched the video of the incident. It was obvious that my potential client’s story was, to put it mildly, inaccurate. It saved me a lot of time and trouble.

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  Outside security cameras. Urban areas are increasingly blanketed with surveillance cameras. This was highlighted after the Boston Marathon bombing when the bombers were caught on numerous cameras. When we are hired early enough, we check out the surrounding area for cameras that might have inadvertently recorded anything of interest. Security cameras on stores, shopping centers, service stations, banks, ATM machines, etc. are of potential interest. In one of our cases, a security camera on a nearby store recorded not the crash itself but the last moments leading up to it.
• Public safety surveillance cameras. A higher level of video surveillance is operated by city governments and even the Department of Homeland Security. When a serious accident happens in a critical area of a city or in the national transportation infrastructure, we send an Open Records Act (state) or Freedom of Information Act (federal) for production of video recorded in the minutes surrounding the incident.People often ask if we can retrieve video from DOT traffic monitoring cameras, but they consistently deny that any recordings are retained. Usually we don’t get anything useful from any of the public surveillance systems, but when we do it can be really good stuff.
• Camera phones. Years ago, we would check with firemen who might have carried disposable cameras in their pockets when responding to major crashes. That led to discovery of some extremely dramatic scene photography. Now, in an era when virtually anyone at the scene is likely to have a cell phone that includes both still and video camera capabilities, investigation can include a broad search for individuals who may have recorded clips for themselves. That is a difficult search.

The downside of all this is that jurors may expect to see video in every case, much as TV shows like CSI lead some to expect DNA evidence in every case. Sometimes it is there, sometimes not. But jurors should understand the absence of particular forms of evidence does not preclude finding proof by a preponderance of evidence.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

Almost all personal injury and wrongful death cases in the United States are handled on a contingent fee basis. That means that the lawyer is paid only in proportion to the amount recovered for the client. If there is no recovery, the lawyer is not paid. If money is recovered from the other side, the lawyer is paid an agreed percentage of that recovery plus reimbursement of the lawyer’s out of pocket expenses.

Years ago, when I was handling business-to-business commercial collection cases for small businesses in my hometown, I always gave those business clients the option of paying me by the hour or a percentage of the amount I collected. They always chose the percentage, even though I repeatedly made an effective hourly rate many times what they would have paid me if they had taken the other choice. But they still chose the percentage fee every time.

Many times I have offered new clients in personal injury and wrongful death cases the option of paying my hourly rate every month rather than a percentage of the recovery payable out of the check from the insurance company at the end of the case. Because nobody has ever taken me up on that, I quit mentioning the option.

There are at least four advantages of contingent fees.

1. The contingent fee is the one device in law that gives injured people of moderate financial means a fighting chance in the courtroom against giant corporations and insurance companies. Hardly anyone dealing with the effects of a major injury could afford to pay an experienced lawyer $200 to $400 per hour or more for a couple of years of challenging litigation.
2. Contingent fees help to weed out cases that lack substantial merit. Experienced lawyers will not waste their time on a lawsuit that does not have enough merit to justify investment of their time. We may take a calculated risk on hard cases where there is an intellectually honest but untested legal theory. However, any lawyer who repeatedly bets on cases that have no value may soon go broke.
3. Contingent fees perfectly align the lawyer’s incentive with results for the client, and the lawyer’s pay is directly proportional to results obtained for the client. A lawyer who knows she will not be paid unless successful is highly motivated to get the optimal result for the client. By contrast, an hourly fee arrangement can encourage delay, inefficiency, and unnecessary action unless there is an incentive to earn future business from the same client. When law firms set billable hour quotas, the incentives often do not align with client outcomes.
4. Expenses of litigation as well as fees can be prohibitively high for injury victims. Lawyers who work for contingent fees typically also advance the expenses of litigation (filing fees, accident reconstruction, expert witnesses, court reporters, videographers, medical illustrations, exhibit preparation, travel costs, etc.), knowing that most clients are unable to do so, and are reimbursed for the costs out of money recovered for the client. Experienced in the rough estimation of costs and benefits, and knowing they will get that money back only if they win for the client, sensible lawyers are motivated to be prudent and spend only as much as necessary.

Contingent fee percentages vary among lawyers and types of cases, but a range of 33 1/3% to 40% is typical. Occasionally, a lower percentage may be offered for cases subject to early resolution and higher percentages may be justified when cases are especially risky or involve appeals after trial.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

Every few weeks or months, we see news stories about breach of data security in medical centers or health insurance companies. Most people hearing that probably just shrug, figuring it’s not as bad as breach of credit card or other financial data. Earlier this year, for example, Blue Cross Blue Shield of Georgia revealed that as many as 80 million customers of the Anthem Blue Cross had their account information stolen. My family and I were among them.

Most people do not realize that breaches of medical data privacy can be just as expensive as a financial date breach and may involve other very serioius consequences.

• to combine a patient number with a false provider number and file false claims with insurers
• to fraudulently obtain medical services at your expense
• to obtain fraudulent prescriptions for sale on the black market
• to obtain medical services with the beneficiary’s consent. A substantial portion of identity theft is consensual between friends and family, although this may wane as more people acquire insurance under the Affordable Health Care Act.

So far, you might again shrug and wonder what real harm that might cause you. But there are other potential consequences of medical ID theft that hit closer to home:

• for fraudulent withdrawal of your bank account funds or fraudulent use of your credit card use
• denial of your medical insurance benefits because aggregate policy limits were exhausted by fraudulent use
• denial of or increased premiums for your life or disability insurance based on inaccurate medical history
• improper medical treatment to you based on inaccurate medical records
• billings to you for a fraudulent medical bill
• denial of employment to you if a background search discloses a disqualifying medical condition for a job, such as commercial truck driving

Individuals are not the only ones at risks. Doctors, hospitals and clinic can  have their medical provider identifiers stolen too.  The most common approaches are:

• Thieves use a physician’s medical identifier to make it appear that the provider ordered health services
• Thieves use physician’s medical identifier to make it appear that a physician provided and billed services directly even though the physician never saw the patients.  That can result in the IRS pursuing the physician for not paying taxes on income the provider is falsely recorded as having received.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of the Institute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

Several years ago I handled a products liability case against an auto manufacturer that had designed its braking system on one model so that a poorly designed sensor would turn off the antilock braking system without warning. As a result, our client was a brain damaged quadriplegic. It took much expert analysis and discovery of records to figure that out.

This is a great illustration of  why it is so important to preserve the right to thorough discovery to uncover the truth. Without a persistent plaintiffs’ lawyer forcing disclosure, GM would have kept all this secret without regard to the harm done to people.

Now we have a news story about another hidden auto defect involving a poorly designed switch. According to investigative reports in the Wall Street Journal, GM engineers knew of ignition-switch problems on the 2005 Cobalt that could disable power brakes, power steering and air bags, but continued to launch the car without correcting the defect.

GM was forced to recall 2.6 million vehicles, many of them Cobalts earlier this year because of a fault that turns odd the ignition switch while the car is being driven. Also recalled were Saturn Ion, Chevrolet HHR, Pontiac Solstice and G5 and Saturn Sky. The recall was expanded from 1.6 million to 2,591,665 cars, now including all model years of the Chevrolet Cobalt, Chevrolet HHR, Saturn Ion, Saturn Sky, Pontiac G5 and Pontiac Solstice made from 2003-2011.

It is estimated that 12 people have died and 34 people have been seriously injured because of the ignition-switch problem

The company believed the vehicles could be safely coasted off the road after a stall, according to testimony from a GM engineer in one of dozens of civil suits against the automaker because of deaths related to the ignition-switch problems.

The Chevy Cobalt ignition defect lawsuit arose from a fatal crash in which the victim was driving her Cobalt at highway speed when the ignition failed and airbags failed to deploy because the car was turned off at the time of the crash. Other who were involved in a similar situation explained to the National Vehicle Safety Administration that the car was difficult, if not impossible to steer when the ignition failed. During the 2013 court case, an engineer testified that GM believed drivers should be able to handle a car even without power steering.

To make matters worse, after the manufacturers re-engineered the faulty ignition on the Chevrolet Cobalt and Saturn Ion in 2006, they failed to create a new part number for the non-defective ignition that they designed. According to the publication in Automotive News, not following the protocol of renumbering helped stall its own engineers’ investigation into problems with the cars.

Although GM officials issued service bulletins to its dealers about the Cobalt as early as 2005, it did very little to help get defective vehicles off the roads. In a meeting on May 15, 2009, GM engineers learned that data in the black boxes of Chevrolet Cobalts confirmed a potentially fatal defect existed in hundreds of thousands of cars. However, GM did not tell this to the families of accident victims and GM customers.

In interviews, letters, and legal documents during the months and years that followed the initial report, GM said there was no evidence of any defect in their cars even though they learned about the potentially fatal defect. The U.S. government is investigating General Motors’ handling of the defect and probing reports that it knew there was a problem for years.

After levying a $1.2-billion fine on Toyota last month over an unreported safety problem with its accelerator pedals, U.S. Attorney General Eric Holder said he expected that settlement to serve as a model for how prosecutors would approach future cases involving “similarly situated companies.”

Although the Japanese automaker faces a large fine, criminal prosecution of individuals involved is not likely. Since it announced the recall, GM has faced a number of private lawsuits, as well as class actions by auto owners who say the recall affected the value of their vehicles.

A wrongful death lawsuit was filed in Minnesota recently on behalf of three teenaged girls who were injured or killed in a 2006 crash. The lawsuit accuses GM of knowing about the ignition switch defect, but failing to fix the vehicles. In two private lawsuits in Texas, the plaintiffs urge GM to tell owners of affected Saturn and Cobalt cars not to drive the cars. A U.S. senator on Monday asked the federal government to force General Motors to establish a fund to compensate consumers affected by the problem.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on the representation of plaintiffs in cases of catastrophic personal injury and wrongful death.

Serious physical injuries can leave scars that are not immediately visible. While we are rather conservative about being too quick to label emotional reactions to ordinary types of injuries as psychiatric conditions such as  Post-Traumatic Stress Disorder (PTSD), it is important to recognize it when psychological injuries are real.  That requires that injury lawyers have at least a working knowledge of psychiatric diagnoses that may relate to physical injuries.

PTSD one of the mental disorders classified within the anxiety section of disorders in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or “DSM”.

The DSM is recognized all over the world as being the most authoritative manual regarding the diagnosis of mental disorders. The principle purpose of the DSM is to aid clinicians in the diagnosis of mental disorders. However, its primary purpose isn’t forensic. In fact both the DSM-IV and DSM 5 include disclaimers that state the risks that are present within in DSM categories, criteria, and textual descriptions when they are used for forensic purposes. The main concern is that the diagnostic criteria will be misused or misunderstood. In a litigation setting, one must understand  a diagnosis does not equate with a particular cause of a psychiatric condition. That is established through a patient’s history and professional opinions in addition to the DSM diagnosis.

Some changes to the DSM that could affect personal injury lawyers include:

1.) Chapter order: DSM-5’s 20 chapters will be restructured based on disorders’ apparent relatedness to one another, as reflected by similarities in disorders’ underlying vulnerabilities and symptom characteristics.

2.) Substance use disorder will combine the DSM-IV categories of substance abuse and substance dependence. In this one overarching disorder, the criteria have not only been combined, but strengthened. Previous substance abuse criteria required only one symptom while the DSM-5’s mild substance use disorder requires two to three symptoms.

3.) Personality disorders:  DSM-5 will maintain the categorical model and criteria for the 10 personality disorders included in DSM-IV and will include the new trait-specific methodology in a separate area of Section 3 to encourage further study how this could be used to diagnose personality disorders in clinical practice.

4.) Posttraumatic stress disorder will be included in a new chapter in DSM-5 on Trauma- and Stressor-Related Disorders. DSM-5 pays more attention to the behavioral symptoms that accompany PTSD and proposes four distinct diagnostic clusters instead of three. PTSD will also be more developmentally sensitive for children and adolescents. However, we will continue to view with skepticism any diagnosis of PTSD arising out of a run of the mill car wreck, though the diagnosis may fit perfectly in cases where the incident and its aftermath was extraordinarily horrifying.

5.) Removal of bereavement exclusion: The exclusion criterion in DSM-IV applied to people experiencing depressive symptoms lasting less than two months following the death of a loved one has been removed and replaced by several notes within the text delineating the differences between grief and depression. This reflects the recognition that bereavement is a severe psychosocial stressor that can precipitate a major depressive episode beginning soon after the loss of a loved one.

The DSM provides categorical classifications that divide mental disorders into types based on criteria sets with defining features.  It is a classification of mental disorders that was developed for use in clinical, educational and research settings.  The DSM is meant to serve as a guideline to be informed by clinical judgment and is not meant to be used in a cookbook fashion.  It is essential that the DSM not be applied by untrained individuals, since clinical training, judgment and experience are essential to proper diagnosis. So don’t just read the book and try to diagnose yourself; you will become a psychiatric hypochondriac, thinking half those diagnostic criteria apply to you.

Unlike physical injuries or deformities, the fact that one is depressed, overly nervous, anxious, fearful or withdrawn is usually not immediately recognizable during a trial the lasts a couple of days. Jurors might speculate about the extent to which an injured person has truly suffered because of the incident, and that isn’t good. This is why it is important for lawyers to have a working familiarity with the DSM so as to understand when expert testimony of a psychiatrist or psychologist may be helpful and when it would merely detract from an otherwise solid case.

On July 1, 2013, the Georgia Court of Appeals ruled on a legal malpractice suit filed by a young adult over alleged mishandling of the settlement of an injury claim when she was five years old.  After injury claims for her and her father were settled, her parents divorced. Upon reaching adulthood, she claimed that her father and attorney had conflict of interest and did not protect her interests. Anderson v. Jones, 2013 WL 3286703 (decided July 01, 2013).  Though all the minors’ personal injury claims against the law firm were rejected, the decision provides valuable lessons for lawyers representing injured children.

Lawyers handling minors’ personal injury tort claims should read Anderson case.  I won’t rehash it, but here are seven tips for lawyers representing a minor in a personal injury settlement:

1.            Carefully comply with the rules on minors’ settlements. Compliance with legal procedures protects the child from wasting or misuse of her funds in a personal injury settlement .  It also protects the parents and attorney from costly mistakes.  See O.C.G.A. § 29-3-2, OCGA § 29-3-3, O.C.G.A. §29-5-23(c)(5) and  Probate Court Standard Forms, GPCSF 19, Petition To Compromise Doubtful Claim Of Minor/Ward. For context read OCGA § 29-3-1 through  29-3-100 (conservatorships for minors).

2.            Figure out if both parent and child were injured. When both parent and child are seriously injured, get someone other than an injured parent to serve as “next friend” or guardian ad litem for the child. This may guard against possible conflict of interest claims about the allocation of damages in the event of a later schism in the family. While not required by law, it may prevent later headaches when dealing with a minors’ personal injury settlement. See OCGA § 9–11–17(c).

3.            Distinguish child’s claim and parent’s claim.  Under Georgia law, an injured child has a claim for pain, suffering and loss of future income after age 18, and the child’s parent has a separate claim for medical expense, loss of services and loss of child’s income before age 18. Analyze how medical lien claims will apply to each of these. If one parent may be alleged to share fault  for an incident, consider having the other parent or another relative serve as “next friend” or guardian ad litem in suit for the child’s claim in order to reduce risk of confusion of issues.

4.            Analyze limitation period deadlines. A minor’s claim for pain, suffering and future medical expense and income loss after reaching 18 subject to a two year limitation period starting on the 18th birthday, so the deadline to file that suit is the 20th birthday. OCGA § 9–3–90(a). A parent’s claim for the child’s medical expense, loss of services and loss of income up to age 18 was formerly subject to a 4 year limitation as a property claim but is not classified as a personal injury claim  is subject to a 2 year limitation.   Mitchell v. Hamilton, 228 Ga.App. 850, 493 S.E.2d 41 (2002). In medical malpractice cases, the limitation is two years with a period of repose only to the 5th birthday, so any case for medical malpractice on a child under 5 must be filed by the 7th birthday. OCGA §§ 9–3–71, 9–3–73(b).

5.            Consider structuring all or part of a minor’s settlement to pay out after the child becomes an adult, eliminating or reducing the need to for guardian bonds and annual reports to probate court.  For example, a structured settlement annuity can have payments scheduled to pay for college, a lump sum at perhaps age 23 to replay low interest college loans, installments at predetermined ages to pay for down payment on a home, to start a business, etc.

6.            Consider associating a lawyer who specializes in guardianships, conservatorships and special needs trusts. Personal injury trial lawyers do not necessarily have the same expertise as those who focus on these issues. When there is a significant recovery for an injured minor , it can be well worth the time, effort and cost to bring in a specialist to structure the handling of funds.

7.            Assess the minor’s maturity. To the extent appropriate for the individual minor’s capacity and maturity, involve her in the process. Rule of Professional Conduct 1.14 addresses a lawyer’s duty to a client with diminished capacity, including minors. Obviously a 5 year old lacks the capacity to meaningfully participate in decisions about tort settlements, but some bright, mature 14 year old adolescents have better sense than their parents and even their lawyers.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

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.

11. Propose a stipulation that attorneys issue deposition subpoenas.

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

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

7. Draft jury instructions early.

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

This helps to level the playing field for solo and small firm lawyers with tight budgets.

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

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.

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 unintended consequences on our system of justice and the delivery of legal services.

Conflict with duty of confidentiality. 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.

Burden on individuals but not businesses or governments that litigate against them. 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.

Economic incentive to shift legal services – and law firms’ work, staff and investment – outside Georgia.  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.

Burden on citizens’ constitutional right of access to courts. 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.

“Misery tax”. 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.

 Effect on injury cases. 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.

Experience of other states. 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.

Constitutional questions.  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:

    •    Access to courts. 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?
    •    Equal protection and due process. 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?
    •    Separation of powers.  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?
    •    Tax on litigation in federal courts may violate U.S.  Constitution Supremacy Clause.  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?
    •    Breach of confidentiality burdening right to counsel. 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?
    •    Taxing some professions while exempting others may violate equal protection of law. 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?
    •    Burden on rights guaranteed in U.S. Constitution. 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?

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.

In a scene reminiscent of the 1982 Paul Newman movie, “The Verdict,” the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for.   In closing argument I had asked for a verdict of approximately $1.2 million for our client’s permanently disabling leg injury.  When we got that question from the jury, my first thought was that I don’t drink anywhere near enough to fit the Paul Newman role in the movie.

Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia.  The verdict was broken down as follows: compensatory damages:  $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses  of litigation $ 22,145.90.  Medical expenses were $112,228.  The highest offer from defendant’s insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.

The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a “runaway jury.”  These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.

It was a very good week.

Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532

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 first in her family to attend college, Carol Hunstein built a distinguished career as a moderate conservative during her 22 years as a judge.  Unaffiliated with any political party, she has wide support among both Republicans and Democrats who respect her skill, independence and fairness.

However, a largely anonymous group of billionaires and large corporations acting through  “independent” committee have funneled $1.8 million into aiding the campaign of her opponent, Mike Wiggins, through “independent expenditures” that are not subject to the limits on campaign contributions.  One Washington-based committee whose donors have not been identified is spending $1.3 million to defeat one nonpartisan Georgia judge. 

One must ask what promises Mike Wiggins made about what he would do on the bench in return for such extremely generous financial support for his campaign. The folks who are willing to pump $1.8 million into a state judicial race have to have a financial motive and an assurance of a financial payback.

Carol Hunstein was forced at an early age to learn the value of hard work, discipline and dedication. Born into poverty, she contracted polio when she was two, survived her first bout of bone cancer at age five, and lost her mother at age 11.  Her father did not think girls needed a college education, so she married at 17 and had a child at 18.  When she was 22, her husband abandoned her, she lost a leg to cancer, and doctors told her she had only a year to live.  Struggling to support herself and her child, she entered a community college on a vocational rehabilitation scholarship.  She made her way through college and most of law school while raising her son on less than $200 per month.  After remarrying she had two daughters.  Her kids are all grown, and she has one grandson.

In 1977, Carol opened a law practice in Decatur, where she represented ordinary people in a wide variety of domestic, criminal and civil cases. Spurred by a county judge who repeatedly called her “little lady” in court, she ran for Judge in 1984, defeating four men to become the first woman elected to DeKalb Superior Court.

In 1992, then-Governor Zell Miller appointed Carol to the Supreme Court of Georgia.  During 14 years on the Supreme Court, Carol has participated in more than 5,000 cases and authored more than 600 published opinions.  She has ruled against me more than for me, but I respect her integrity and independence. She is widely regarded as one of the hardest working members of the Court, a model of impartiality and fairness, and a judge who strictly adheres to the rule of law.  She is particularly known for being hard on repeat criminal offenders, deadbeat dads, purveyors of domestic violence, and lawyers who violate ethical rules.

Justice Hunstein has achieved national stature based on her work and her character.  In 1999, the American Bar Association gave her an award given to less than 90 women in history.  Other winners include U.S. Supreme Court Justice Sandra Day O’Connor.

No matter what her well-funded opponent’s TV ads may tell you, Justice Hunstein is not a “liberal activist judge” and she is not “soft on crime.” I have read hundreds of her published decisions and have found absolutely no such pattern.  Any judge who has ruled fairly on thousands of cases, based on the facts and the law, is vulnerable to having  a few individual decisions taken out of context and misrepresented by a political opponent in slick TV ads.

She has struck back with a tough but truthful ad about the fact that her opponent’s mother sued him and his sister gave an affidavit saying he threatened to kill her.  I don’t know about his family dynamics, but I have seen copies of the court documents and the statements in the Hunstein ad are as true as they are tough. Now I have seen a statement released by Mr. Wiggins’ sister’s lawyer in Alabama, confirming that she stands by the statement in her 1997 affidavit that Mr. Wiggins threatened to kill her.

The extremely well funded campaign against Justice Hunstein is part of a coordinated nationwide assault on judicial independence that seeks to overwhelm with big money state Supreme Court justices around the country, and thereby intimidate all other state judges. In state after state, these campaigns have used very similar TV ads to misrepresent judges’ records and mislead voters.  In this instance, the candidate running against Justice Hunstein is an academically bright ideologue and has been a political appointee in Washington, but he has never tried a case in any trial court and has never argued a case in a Georgia appellate court.  The one published court decision in which he was lead counsel was a federal case several years ago in which he unsuccessfully argued that a drug dealer’s sentence was too harsh.  That sounds like a prescription for a politically active judge who would legislate from the bench, rather than simply applying the law to the facts in each case. 

It appears to me that folks who don’t like independent judges simply picked out someone they thought looked vulnerable – a non-political, one-legged woman with a Jewish-sounding name  (though she is a Christian) —  raised a few million dollars, and recruited an ambitious candidate to try to knock her off. 

Please don’t fall for that.  Please vote to re-elect Carol Hunstein, and urge your friends and family members to do likewise.

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.

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Ken Shigley is president of the State Bar of Georgia for 2011-12. He represents plaintiffs in catastrophic injury and wrongful death cases statewide in Georgia, and in other states only when that can be done in compliance with the multijurisdictional practice and pro hac vice rules in each state. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine.

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Ken Shigley, at Chambers, Aholt & Rickard, LLP 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).