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

————-

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.

­­­­­­­­­­­­­­­­­­­­______________________________

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. 

Kenneth L. Shigley , an Atlanta personal injury attorney, continues on the board of the Institute for Continuing Legal Education(ICLE), on which he has served since 2008. Mr. Shigley previously served as Chairman of the Board. He is also a former president of the State Bar of Georgia and received the “Traditions of Excellence” Award from the Bar in 2019.

The Georgia Institute of Continuing Legal Education is a not-for-profit educational service of the State Bar of Georgia and is responsible for providing continuing legal education for all lawyers in the State of Georgia. The Institute is a consortium of the Bar and the Law Schools of the Universities of Georgia, Emory, Mercer, Georgia State, and Atlanta’s John Marshall Law School.

Mr. Shigley is the first Georgia lawyer to attain three board certifications from the National Board of Trial Advocacy, in Truck Accident Law (2019), Civil Pretrial Practice (2012) and Civil Trial Advocacy (1995). He is lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters West, 2010-20), former chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and has been a speaker or program chair at continuing legal education programs throughout Georgia and the United States since 1994. With this background, Shigley continues on board of Institute for Continuing Legal Education after twelve years of service on the board.

The Institute provides over 300 seminars, webinars, and video seminars to the members of the State Bar of Georgia each year. The Supreme Court of Georgia requires that every active member of the State Bar successfully complete at least 12 hours of legal education in order to maintain their license to practice law. The twelve trustees of the Institute of Continuing Legal Education are charged with the responsibility of developing programs and instituting policies that will provide legal education for members of the State Bar of Georgia.

Mr. Shigley may be contacted for consultation on cases of wrongful death and serious personal injury at (404)253-7862.

Kenneth L. Shigley, Sr., of Atlanta, Georgia, has been named one of America’s Top 100 Personal Injury Attorneys ® for 2020.

Selection to America’s Top 100 Personal Injury Attorneys® is by invitation only and is reserved to identity the nation’s most exceptional litigators for high-value personal injury, catastrophic injury, wrongful death, product liability, and medical malpractice matters.
To be considered for selection, an attorney must focus more than 50% of their active legal practice on personal injury, catastrophic injury, wrongful death, product liability, and/or medical malpractice matters. These minimum qualifications are required for initial consideration. Thereafter, candidates are carefully screened through Advanced Data Analytics evaluating a broad array of criteria, including the candidate’s professional experience, litigation experience, significant personal injury settlements and/or verdicts, peer reputation, and community impact in order to rank the candidates throughout the state.

Only the top 100 qualifying attorneys in each state will receive this honor and be selected for membership among America’s Top 100 Personal Injury Attorneys®. With these extremely high standards for selection to America’s Top 100 Personal Injury Attorneys®, less than one-half percent (0.5%) of active attorneys in the United States will receive this honor — truly the most exclusive and elite level of attorneys in the community.

Mr. Shigley’s qualifications include:

• President, State Bar of Georgia, 2011-12
• Tradition of Excellence Award for lifetime achievement, 2019
• First Georgia lawyer to earn three board certifications from National Board of Trial Advocacy (Truck Accident Law, Civil Trial Practice, Civil Pretrial Practice)
• Chair, American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, 2015-16
• Lead Author, Georgia Law of Torts: Trial Preparation & Practice
• Chair, Institute for Continuing Legal Education in Georgia, 2012-13
• Georgia “Super Lawyer” (since 2004)
• “AV Preeminent” rating in Martindale-Hubbell Law Directory (since 1989)
• Avvo 10.0 out of 10.0

See representative verdicts and settlements.

Ken Shigley of Shigley Law LLC, based in Atlanta, Georgia, recently earned his third national board certification, in Truck Accident Law, from the National Board of Trial Advocacy. Certification is based upon exhaustive testing, documentation of extensive experience in the field of trucking accident litigation, writing samples, and professional recommendations from lawyers and attorneys familiar with the applicant’s work.

The National Board of Trial Advocacy operates under authority of the American Bar Association.   “There is no dispute about the bona fides and the relevance of NBTA certification…. Disclosure of information . . .  both serves the public interest and encourages the development and utilization of meritorious certification programs for attorneys.” U.S. Supreme Court Justice Stevens in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 110 S.Ct. 2281 (1990). Mr. Shigley previously attained NBTA board certification in Civil Trial Law (1995) and Civil Practice Law (2012).

Why hire a board certified attorney?

Truck Accident Law deals with the procedural, substantive and practical issues unique to collision cases involving commercial tractor trailers, buses and other commercial motor vehicles and all of the people and entities in the transportation cycle.

The trucking industry is comprised of 3.5 million professional drivers. The size and weight of commercial motor vehicles and trucks in an accident cause significant damage to drivers, passengers and property. The US Department of Transportation reports that there are around 500,000 trucking accidents each year. According to the National Highway Traffic Administration approximately 4,000 people die and 104,000 are injured annually. One out of every eight traffic fatalities involves a truck collision. Trucking is regulated by the Federal Motor Carrier Safety Administration, a division of the US Department of Transportation.

Shigley is a member of the Board of Regents of the Academy of Truck Accident Attorneys.  ATAA recognizes attorneys who have documentable knowledge, real experience and proven results in handling truck crash cases so that victims can choose lawyers with confidence. It provides lawyers who handle truck crash cases for victims with the very best cutting edge education and resources available to both improve their knowledge and skillset.  Lawyers can claim to be anything in TV ads, on the Internet or in promotional material, but every ATAA Board Certified member has been thoroughly vetted and tested.

The National Board of Trial Advocacy provides board certification for attorneys who have demonstrated skill and expertise in a particular field and have proven it through rigorous examination and testing by the NBTA. The NBTA is one of the organizations accredited by the American Bar Association to demonstrate that lawyers certified have an enhanced level of expertise and substantial involvement in the specialty area of certification. The standards are designed to enable the NBTA to evaluate thoroughly the objectives, standards and procedures of attorneys and to facilitate public access to appropriate legal services.

Similar to the medical profession in which the body of knowledge is so large that it’s impossible for one doctor to remain current in all specialty areas, the body of law has grown so large and complex that attorneys can no longer be all things to all people. Unlike the medical profession, which has embraced specialization and specialty certification, the legal arena has been slow to acknowledge publicly what it has known for years: nearly all lawyers specialize but do so without substantiation beyond “reputation” or simply saying it is so.

Mr. Shigley’s two prior NBTA board certifications are Civil Trial Law (1995) and Civil Practice Law (2012). 

Civil Trial Law may include civil litigation, personal injury litigation, and any other type of litigation that is not criminal in nature, such as property disputes, construction or insurance claims and a wide array of other civil controversies. Second, usually money damages are at stake in civil litigation.

Despite what is seen on television dramas, cases do not always have to go to trial. However, it is impossible to know in advance which cases will settle and which will go to trial, and because settlement amounts reflect predictions about the most likely result if the case is tried, it is wise for people to hire well qualified trial attorneys to handle their claims or defense of claims whether they think the case will be tried or settled out of court. It is important to understand

Trial attorneys must have knowledge,experience, great communications skills and a thorough understanding of group decision making dynamics and persuasion. In trial practice a misstep can end a case, so having a trial attorney who is making his trial debut may be dangerous, especially in a case involving substantial damages.

certification involves preparing and resolving cases before trial, including litigation proceedings from inception of litigation through discovery, pretrial motions and hearings, and alternative dispute resolution procedures in all areas of substantive law before state courts, federal courts, administrative agencies, and arbitrators.

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

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

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

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

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

Though common in litigation, confidential settlements can be controversial.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

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

On June 7, 2019, Ken Shigley was presented the Tradition of Excellence Award by the State Bar of Georgia General Practice and Trial Section. It is a lifetime achievement award given annually to four lawyers and judges with long experience. Many  prior recipients of the award were more illustrious and deserving. Mr. Shigley’s acceptance remarks follow:

The Calling to Become a Virtuous Lawyer

Good morning and thank you. Those of us receiving this award may have one thing in common. We have outlived our severest critics as well as many dear friends and loved ones.

Forty-two years ago yesterday, Judge Robert Noland swore me in as member of the Bar at the 1956 Douglas County courthouse that is now a “midcentury modern” museum. I wish he and his dear Betty could be here today.

The person I most wish could be here is my bride, Sally, who was my best friend and cheerleader for 35 years, and beat me on the race to the Father’s house two years ago after a 29-year sojourn with recurring brain tumors. She is with me in spirit. Our good son, Ken Jr., and his bride, Jessica, are here. Our amazing daughter, Anne, and her husband, Steve, could not make it from New Hampshire. That’s a long trip for breakfast.

Since these remarks will be published, and some younger lawyer starting out might read them, I will resist the temptation to just tell jokes and war stories.

We can make a good living in law, sometimes a very good living. But we should never forget that law is much more than a way to make money. It is not just a job or a business, but a calling. Viewed with the right perspective, the law can offer among the best opportunities to help people who are hurting and to temper and resolve human conflict.

However imperfectly, as we pursue our calling we should strive to incorporate into personal and professional life the classical virtues. You won’t always get it right – I surely haven’t – but we should keep these as our aspirational goals.

1. PRUDENCE (PRACTICAL WISDOM). The prudent lawyer can recognize that the perfect is often the enemy of the good, and that the hardest choices are not between good and bad but between good and good and between bad and bad.

In my first year as a lawyer, an old attorney told me three rules for the practice of law.

• Always get to office early on Monday because people who have been stewing about their problem all weekend will hire the first lawyer they can find Monday morning. The 2019 version of that might be a 24/7 case intake system to promptly capture prospects.
• Never let the sun set on your client’s money. When you get it in, get it out to the client. In 2019, that must include proactive dealing with liens so the client has her money free and clear when you disburse. I have a paralegal preparing for her bar exam who knows more about minimizing liens than anyone here. Above all, never even consider borrowing even five cents from your trust account. That is the road to hell.
• Always go to the bathroom before  the courtroom. Some things never change.

To those three old kernels of practical wisdom I would add these:

• Continue learning and growing. I once knew a lawyer who was very proud that he had not read a book after graduating from Harvard Law School and took no continuing legal education courses beyond the bare minimum required. Don’t be that guy. Read widely both within and outside your practice niche. The minimum CLE requirement is 12 hours per year; aim for 80 or more. Get the best CLE in your practice area you can find. ICLE has a lot of great offerings. There is a lot of good material in online CLE programs you can listen to in the car or in the gym. The best CLE in your niche may be in a distant state. If so, Delta is ready when you are.
• Master your law office accounting system so that you are not overly dependent on staff, and develop a close relationship with a good CPA.
• Hire slow and fire fast. Invest in good staff. When you get a good staff person, pay more than the competition and invest in training.
• If you’re not 15 minutes early, you’re late.

2. FORTITUDE (COURAGE) involves the toughness required to stand resolute for a cause or client and work against all odds to see that justice is done, even at great personal, financial and occasionally even physical risk.

3. TEMPERANCE (MODERATION) is reasonable, common sense, healthy moderation of habits, and maintenance of a healthy balance in professional, personal and family life.

4. JUSTICE embodies a sense of fairness and morality. Though we cannot ignore economic reality, we should not be so totally focused on money that we fail to serve the cause of objective fairness.

5. FAITH motivates us to persevere and to serve even when reason tells us all is lost.

6. HOPE that out of the messy conflicts with which we must labor in the law, something good and worthwhile may somehow emerge.

7. LOVE is that unselfish concern on some level for the welfare of even the most annoying and unlovable clients, witnesses, staff, colleagues, judges, court staff and even adversaries. It should become radically unselfish and gracious, beyond mere feeling, attraction, affection or compassion. Without love, justice turns to cruelty. To manifest love for the unlovable, we need to develop both a kind of dangerous unselfishness and a capacity to exercise “tough love,” urging folks to cut out their foolishness.

Someday all our beautifully framed diplomas and certificates will wind up in a bin at an estate sale. Someone may pay fifty cents for the frames, or they may go in the dumpster. When a neighbor died a few years ago in his nineties, his Wharton MBA was found on the basement floor at the end of the estate sale. When I had an estate sale at my house recently, to downsize two years after my wife passed, some of the professionally framed certificates that I hung proudly on my office wall forty years ago went to the landfill.

Compared to the infinite scale and complexity of the universe, our lives are infinitesimally small and finite. But in this snippet of time and space we occupy, we are called to interpret the moral order of Creation into pragmatic legal solutions for the messy problems presented to us, and to use our skills to temper the chaos to which human nature gives rise.

Being able to recognize this calling and our peace-making and problem-solving abilities may allow us to regain, and live with, a degree of passion and purpose in the face of difficult circumstances and never-ending temptations to ethical compromise.

I know better than anyone that I am not truly worthy of that calling or deserving of this award, but thank you.

Few people recall that my undergraduate alma mater, Furman University in South Carolina, once had a law school. In the depths of the Great Depression, Furman closed its law school in 1932.  A North Carolina school that was well-funded by a tobacco magnate, bought the library of Furman’s law school. It was rolled into Duke University Law School, which is now rated number 11 among U.S. law schools.

In the past two decades a boom in enrollments led to a glut in the law school market. Some of this was fueled by easy availability of government-guaranteed student loans.

Moving from boom to bust, the Great Recession roughly ten years ago brought about a decrease in law school applications and enrollments. The top law schools continued to fill up with well qualified applicants. Admission to lesser law schools became less competitive, opening opportunities for many students who might not have had stellar undergraduate records but were capable of becoming competent lawyers.

But independent law schools at the bottom on the rankings have been struggling to keep their doors open. Those include the Charlotte (NC) Law School, Thomas M. Cooley Law School in Michigan, Indiana Tech Law School, Whittier Law School in California, have announced closures. William M. Mitchell and Hamline University Law School, both in St. Paul, MN, have merged.

Valparaiso University Law School in Indiana has been teetering on the brink, and may move to Middle Tennessee State University. My lawyer friends in Tennessee have expressed great skepticism about the viability of a law school in Murfreesboro. There are three law schools right up the road in Nashville (Vanderbilt, Belmont and Nashville law schools), plus the University of Tennessee Law School in Knoxville and the University of Memphis Law School in the city of that name.

When Atlanta’s John Marshall Law School announced opening of a branch, Savannah Law School, back when I was president of the State Bar of Georgia, I was skeptical of there being enough demand to make it viable. Now that law school’s property has been sold. Students have the option of continuing at John Marshall’s Atlanta campus, or maybe something else. There have been unconfirmed rumors that some university might acquire it, but so far nothing has been confirmed. Students have filed a class action against John Marshall Law School over the closing.

I don’t want to discourage anyone who has a passion for becoming a lawyer from doing so. There are certainly great lawyers and judges who graduated from proprietary night law schools, with or without ABA accreditation. But if one does not have a prominent relative eager to bring him or her into an established practice, and the only option for law school admission is one that is on the brink of extinction, it might be good to consider another career choice.

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. 

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.
​
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.
​
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.
​
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.
​
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.
​
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.
​
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.
​
Ken Jr., 28, owns a fitness training business in Brookhaven and attends Passion City Church in Atlanta with his girlfriend.

I
​
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

About once a month, we receive a solicitation to purchase some made-up “honor” with a certificate suitable for framing designating the “best” or “top” lawyers in my practice area. Almost all are phony vanity distinctions for sale to anyone willing to pay the inflated price, but signifying nothing. I either toss them in the “round file” or post on the office refrigerator with sarcastic annotations.

This one, as Diplomate of the National College of Advocacy, actually signifies something — 400 hours of high quality, national level continuing legal education in my practice area. These hours were accumulated over the years through seminars and workshops from coast to coast in Chicago, Los Angeles,  Montreal, New Orleans, Boston, Cambridge, New York, Baltimore,  San Francisco, Las Vegas, Boca Raton, Atlanta and a lot of webinars.  I also spoke or was program chair at many of those seminars. Last year, I served as chair of the AAJ Motor Vehicle Collision, Highway & Premises Liability Section.

The National College of Advocacy is the continuing education arm of the American Association for Justice. The goal of this program is to build and develop professional knowledge through a continuing commitment to improving members’ trial skills and understanding of substantive law.  “Diplomate” is the highest level of recognition for voluntary participation in programs of the National College of Advocacy.

Ken Shigley is a past president of the State Bar of Georgia, former chair of the board of the Institute for Continuing Legal Education in Georgia, lead author of Georgia Law of Torts: Trial Preparation and Practice, a Certified Civil Trial Attorney of the National Board of Trial Advocacy, and a Diplomate of the National College of Advocacy. A graduate of Emory University Law School, Ken Shigley is a candidate for the Georgia Court of Appeals in 2018. 

This morning on her way to work, a paralegal in our office was injured when someone rear-ended her car on the way to work. When she was waiting for a CT scan in the hospital emergency department, she sent us a text reporting that she had already been called on her cell phone by two “runners” to solicit her for unidentified lawyers. Apparently someone in the police department, ambulance service or hospital had corruptly sold her personal information to someone who was willing to commit a crime and a disbarment offense to solicit her for a case. I asked if she would like to participate in a “sting” investigation to get those lawyers disbarred.

Here are the two things you may do after such a solicitation to help stamp out this predatory practice:

1. Contact Paula Frederick, General Counsel of the State Bar of Georgia
   [paulaf@gabar.org, (404) 527-8720]  This is a disbarment offense but no cases are made without someone filing a grievance, so offer to participate in an investigation and to file a grievance.
2. Contact the District Attorney or Solicitor General in the county where the solicitation occurred. Find Your Prosecutor.  Offer to participate in an investigation of the criminal offense and to testify.

Too many times during my career, I have been asked to take over cases that were already ruined  through mishandling by bottom feeding lawyers who solicited the cases in clear violation of Bar ethics rules, either directly or through a “runner” or a chiropractor. By the time those clients fired their original lawyers and came to me, great damage had been done to their cases. Sometimes I was able to salvage a respectable case, but often those cases were “FUBAR” (WWII era military acronym for “fouled(?) up beyond all recognition”).

And too many times, I have had calls from injured people who said they wanted to get a “real lawyer” rather than the idiots who were calling them on the phone to solicit them a day or two after a wreck.

After the Georgia Southern University nursing student tragedy in 2015, I published an op-ed in the Daily Report, “Victims’ Families Need Time to Grieve, Should Report Ambulance Chasers.”

All too often I hear of injury victims who were directly solicited by phone or in a hospital by “runners” working for unethical, bottom-feeding lawyers. If you or a loved on is solicited after suffering an injury, you should know that any lawyer who participates in that sort of solicitation is subject to disbarment if caught.

Georgia Rule of Professional Conduct 7.3 provides, in part, as follows:

(d) A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.

Solicitations of accident victims by mail are improper within the first 30 days after the injury. Rule 7.3 also provides:

(a) A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, lawyer’s partner, associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication to a prospective client for the purpose of obtaining professional employment if: . . .

(3) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication;

The maximum penalty for a violation of  Rule 7.3 is disbarment.

This stain on the legal profession is not limited to Georgia. In some states there have been damage suits against lawyers who use “runners” on the basis of violation of Fair Business Practice statutes. In Florida, the Attorney General issued a statewide grand jury report on the fraudulent practices involved with solicitation of injury victims by “runners.” Texas recently passed a law attacking this practice as “barratry.” Another approach could be to make any fee contract obtained through use of runners voidable at any time in order to reduce the financial incentive, but that too could be subject to abuse by clients falsely claiming at the time of settlement that a runner was involved in order to extort an innocent lawyer in to giving up an honestly earned fee.

Respectable plaintiffs’ personal injury lawyers across the country have almost universally condemned this insidious practice of solicitation of cases through runners.

However, bottom feeding lawyers who were not concerned about their professional reputation have felt free to violate this rule. Because people who are solicited either hang up immediately, or are too unsophisticated and naïve to recognize a problem, there has been hardly any way to prosecute the cases. It is very difficult to do make these cases without a sting investigation, which the Bar’s general counsel has not felt equipped to do. The main “runner” case for which there has been bar discipline in recent years came about only when federal agents executed a search warrant at a law office, found the “runner book” and turned it over to the State Bar.

Therefore, as State Bar president, I pushed to provide training for State Court solicitors, law enforcement and hospital attorneys on how to carry out these investigation. I appointed a committee to address the problem, and included former FBI agents, State Court solicitors and hospital counsel. While we passed a tweak of lawyer advertising rules, which were approved by the Supreme Court two years later, we were unable to get overburdened law enforcement agencies or prosecutors interested in making these cases.

One of the things I tried to attack during my term as State Bar president was the use of “runners” to unethically solicit people who have been involved in car wrecks. I appointed a committee to explore options for attacking the problem. However, vigorous prosecution of these cases would require an effective sting investigation, which as a former prosecutor I was willing to attempt. However, that is something with which the Bar’s general counsel has never felt comfortable. Sting investigations could be undertaken by law enforcement, but they are reluctant to commit resources for such investigations when the criminal offense is only a misdemeanor. Thus, I eventually came to the conclusion that the only way to get meaningful enforcement is to make it a felony.

In 2014, the legislature took a stab at it, making the second offense a felony. HB 828 passed at the close of the session on March 20th. While I was not involved in drafting this bill, I did have conversations on the topic several months ago with one of the lead sponsors.  Its bipartisan sponsors include Rep. Wendell Williard (R-Sandy Springs, chair of House Judiciary Committee), Rep. Ronnie Mabra (D-Fayetteville), Rep. Dustin Hightower (R-Douglasville), Rep. Trey Kelley (R-Cedartown), Rep. Calvin Smyre (D-Columbus) and Rep. Pam Stephenson (R-Atlanta). The Senate sponsor was Sen. Hunter Hill (R- Atlanta).

This bill enacts a new Code Section 33-24-53 to read as follows:

(a) As used in this Code section, the term:

(1) ‘Capper,’ ‘runner,’ or ‘steerer’ means a person who receives a pecuniary benefit from  a practitioner or health care service provider, whether directly or indirectly, to solicit,  procure, or attempt to procure a client, patient, or customer at the direction or request of,  or in cooperation with, a practitioner or health care service provider whose purpose is to  obtain benefits under a contract of insurance or to assert a claim against an insured or an  insurer for providing services to the client, patient, or customer. Capper, runner, or steerer shall not include:

(A) Any insurance company or agent or employee thereof who provides referrals or recommendations to its insureds; or

(B) A practitioner or health care service provider who procures clients, patients, or  customers through the use of public media or by referrals or recommendations from  other practitioners or health care service providers.

(2) ‘Practitioner’ means an attorney, health care professional, owner or partial owner of a health care practice or facility, or any person employed or acting on behalf of any of the individuals in this paragraph.

(3) ‘Public media’ means telephone directories, professional directories, newspapers and other periodicals, radio and television, billboards, and mailed or electronically transmitted written communications that do not involve in-person contact with a specific prospective client, patient, or customer.

(b) Except as provided for in paragraph (5) of subsection (a) of Code Section 50-18-72, it is unlawful for any person in an individual capacity or in a capacity as a law enforcement officer, law enforcement records staff member, wrecker services staff member, emergency staff member, physician, hospital employee, or attorney to solicit, release, or sell any information relating to the parties of a motor vehicle collision for personal financial gain. This subsection shall not apply to mass public media advertisement and solicitation.

(c) It is unlawful for:

(1) Any person in an individual capacity or in a capacity as a public or private employee or any firm, corporation, partnership, or association to act as a capper, runner, or steerer  for any practitioner or health care service provider. This paragraph shall not prohibit an attorney or health care provider from making a referral and receiving compensation as is permitted under applicable professional rules of conduct; and

(2) Any practitioner or health care service provider to compensate or give anything of value to a person acting as a capper, runner, or steerer. It is also unlawful for any capper, runner, or steerer to recommend or secure a practitioner’s or health care service provider’s employment by a client, patient, or customer if such practitioner or health care service provider obtains or intends to obtain benefits under a contract of insurance or asserts a claim against an insured or an insurer for providing services to the client, patient, or customer.

(d) Any natural person convicted of a violation of this Code section shall, on the first offense, be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment of not less than 30 days and a fine not to exceed $1,000.00. Any natural person convicted of a second or subsequent violation of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not more than ten years and by a fine of not more than $100,000.00 per violation.”

SECTION 2.

Code Section 50-18-72 of the Official Code of Georgia Annotated, relating to when public disclosure of records is not required, is amended by revising paragraph (5) of subsection (a)  as follows:

“(5) Individual Georgia Uniform Motor Vehicle Accident Reports, except upon the  submission of a written statement of need by the requesting party to be provided to the  custodian of records and to set forth the need for the report pursuant to this Code section;  provided, however, that any person or entity whose name or identifying information is  contained in a Georgia Uniform Motor Vehicle Accident Report shall be entitled, either  personally or through a lawyer or other representative, to receive a copy of such report;  and provided, further, that Georgia Uniform Motor Vehicle Accident Reports shall not  be available in bulk for inspection or copying by any person absent a written statement  showing the need for each such report pursuant to the requirements of this Code section.

For the purposes of this subsection, the term ‘need’ means that the natural person or legal entity who is requesting in person or by representative to inspect or copy the Georgia Uniform Motor Vehicle Accident Report:

(A) Has a personal, professional, or business connection with a party to the accident;

(B) Owns or leases an interest in property allegedly or actually damaged in the accident;

(C) Was allegedly or actually injured by the accident;

(D) Was a witness to the accident;

(E) Is the actual or alleged insurer of a party to the accident or of property actually or allegedly damaged by the accident;

(F) Is a prosecutor or a publicly employed law enforcement officer;

(G) Is alleged to be liable to another party as a result of the accident;

(H) Is an attorney stating that he or she needs the requested reports as part of a criminal  case, or an investigation of a potential claim involving contentions that a roadway,  railroad crossing, or intersection is unsafe;

(I) Is gathering information as a representative of a news media organization; provided, however, that such representative submits a statement affirming that the use of such accident report is in compliance with Code Section 33-24-53. Any person who knowingly makes a false statement in requesting such accident report shall be guilty of a violation of Code Section 16-10-20;

(J) Is conducting research in the public interest for such purposes as accident prevention, prevention of injuries or damages in accidents, determination of fault in an accident or accidents, or other similar purposes; provided, however, that this subparagraph shall apply only to accident reports on accidents that occurred more than 60 days prior to the request and which shall have the name, street address, telephone number, and driver’s license number redacted; or

(K) Is a governmental official, entity, or agency, or an authorized agent thereof, requesting reports for the purpose of carrying out governmental functions or legitimate governmental duties.

What to do if you or a loved one is directly solicited for a personal injury or wrongful death case:

Would you really want your important case to be handled by a bottom feeding scumbag of a lawyer so unethical and desperate that he is willing to risk losing his license to practice law if he is caught in that solicitation?

If you receive such a solicitation, get the name and number of the caller and then immediately call the State Bar of Georgia Office of General Counsel  at (404) 527-8720, and offer to assist in investigation and file a grievance for violation of Rule 7.3.

Since this is also a criminal offense, report it to your local District Attorney.

The State Bar needs to enforce the ethical rules and uphold virtue in the legal profession, but it cannot make strong disciplinary cases against such unethical lawyers without evidence required to support a prosecution.

————-

Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, a board-certified civil trial attorney of the National Board of Trial Advocacy, and lead author of Georgia Law of Torts: Trial Preparation and Practice. He may be reached at 404-253-7862 or ken@shigleylaw.com. Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

Lawyers and paralegals who had previously worked at personal injury firms that advertise heavily on television, billboards and bus placards have told me many tales about the business model of those firms.

They have told me how lawyers may be responsible for 600 cases at a time, with 100 or more in litigation.

They have told me how young lawyers in some of those firms are paid only for work on cases they settle before suit, so they have an extreme vested interest in taking whatever an insurance adjuster is willing to offer at that early stage, selling the client’s interest short. They have told me how in some firms non-attorneys employees actually negotiate with claims adjusters with no substantial attorney involvement. They have told me how those firms threaten clients that if they do not accept the insurance company’s pre-suit offer, they may be required to pay the other side’s attorney fees, long before suit is filed or the defense invokes the “offer of judgment” rule that would make that even theoretically possible.

That is a business model but not the practice of law as I know it. Every time I have accepted a case after a client left one the the big advertising firms, I have found that with moderate amount of real lawyer work, I have been able to increase the recovery 8 to 10 times beyond what a lawyer or paralegal at the prior firm had been pressuring the client to accept. It appeared that the case handling strategy at those firms was “sign ’em and flip ’em.”

“Run-of-the-Mill Justice” by Stanford Law professor Nora Freeman Engstrom, published in Georgetown Journal of Legal Ethics in 2009, analyzed the practices of “settlement mill” law firms — those that “advertise aggressively, sign a higher percentage of callers to contract, delegate more duties to non-lawyers, file fewer lawsuits, and take far fewer cases to trial” than legitimate law firms and attorneys.

Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process  tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.

These settlement mills differ from conventional law practices because they settle everything, and do so without the negotiator having the benefit of “(1) first-hand information about verdicts obtained in comparable cases, (2) detailed information about the intricacies of the particular claim, and (3) the proven willingness and ability to take the claim to court.”

Settling all cases  — including the catastrophic cases —  cheaply in relation to the value the cases would have at trial, the settlement mills lack the ability to credibly move cases to jury trial, but offer insurance companies quick, cheap settlements.

Attorneys at settlement mills handle an extraordinarily high number of cases, necessarily treating them in “cookie cutter” fashion. Consequently, they spend “little time engaged in legal research, investigating claims, and preparing pleadings.” The article reports that “one Georgia settlement mill attorney reports that she personally settled approximately 600 to 700 claims in a thirteen-month span.” That is absolutely consistent with what I have been told by a number of lawyers who had left such firms.

Client screening and even settlement negotiations are delegated to non-lawyers. Cases may go from intake to settlement without any attorney contact. That is consistent with what paralegals who once worked at such firms have told me.

Many of these settlement mills seldom file suit or investigate cases, and almost never take a case to trial or refer to a firm that is capable of doing so.

Negotiations with insurance adjusters may take no more than ten minutes, and then clients are pressured to take whatever it offered. (Thus the slogan “one call that’s all” may be literally true — one call to the insurance company is all you get.)

Such settlement mills prey upon uneducated and unsophisticated people who don’t know any better than to respond to heavy TV advertising. Since TV advertising lawyers are stigmatized among lawyers and judges, the attorneys in those firms no longer feel bound by a need to maintain good reputations in the profession. Thus, there is no need to do good work for clients in order to maintain a strong reputation among other attorneys. If a lawyer relies solely upon heavy advertising to produce clients, reputation and relationships do not matter. All they need is a heavy advertising budget and a steady flow of unsophisticated, unsuspecting clients to sell down the river.

They negotiate claims on the basis of formulas that have little to do with the value of cases if they were taken to trial.

The article concludes that insurance companies like settlement mills because they settle quickly and cheaply, even in catastrophic cases, without litigation.

Bar organizations can do little about law firms that operate in this manner because federal courts bar tough regulation of legal advertising. Their operations operate “under the radar” because most of them almost never file their cases in courts. They are the kudzu of the legal system, operating in a manner generally contrary to the interest of their clients and the public, and just as hard as kudzu to limit.

Ken Shigley is a past president of the State Bar of Georgia (2011-12) and past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section (2015-16).  He is one of only 18 Georgia lawyers with double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy, and lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010 – present).    Mr. Shigley has extensive experience representing parties in trucking and bus accidents,   products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

A few times every year, parents of college students considering law school ask me to talk with their offspring about which Georgia law schools they should consider. Before responding to that question, there is always a conversation about why they want to go to law school, priorities in life, and other options for life and career.

There is always a full disclosure of my bias. I graduated from Emory Law School in Atlanta and have remained involved with Emory in various capacities over the years.

If the prospective law student cannot be dissuaded from the idea of law school, and is still passionate about a legal career and a focus on Georgia, I discuss other factors for selection of a law school. Here are a few.

• The student’s aspirations. A student who truly wants to be a practicing lawyer in Georgia may do well as a graduate of virtually any law school, particularly those in Georgia and neighboring states. I know a lot of good Georgia lawyers who came here and took the bar exam after graduating from law school elsewhere. By the time one has been in practice ten years, most everything of practical value that one uses was learned after law school.

For one who might aspire to teach in a law school someday, clerk for a federal judge or appellate judge, or practice at a silk stocking law firm, the first choice might not be John Marshall or its Savannah branch. They offer opportunity for a legal career to students who might not get in elsewhere. The have some great professors and produce lawyers who do good work in the trenches. But the don’t appeal to legal snobs.

One who might want to become a law professor or depart the jurisdiction upon graduation might focus on a school that is better known nationally. In Georgia, those are primarily Emory University (ranked #22 nationally in the U.S. News survey) and the University of Georgia (#33 in U.S. News rankings), though Georgia State is rising fast.

• Reputation among lawyers and judges in Georgia. The University of Georgia, Emory and Mercer have strong reputations and alumni networks among Georgia lawyers and judges. Georgia State University Law School had its first graduating class in 1984, and has come on strong. Though it is not well known outside Georgia (#57 in US News rankings), its alumni network is growing and its reputation among practicing lawyers and judges inside Georgia makes it highly competitive here.

• Cost.  If availability of a wealthy grandparents or a family trust fund makes cost irrelevant, skip past this item. I was not in that category. But when I went to Emory Law School, the tuition cost was about $2,500 per year, more than a state school at the time but still manageable. I chose Emory because I wanted to be in Atlanta, it was the only nationally accredited law school in Atlanta at the time, and Georgia State’s law school was still a much-debated proposal.  I graduated with debt of approximately $8,500 and paid it off within four years as an Assistant District Attorney and in small town general practice. Adjusting for inflation, that would be about $33,750 in 2016 dollars.Now tuition alone is $51,510 per year at Emory and $37,260 per year at Mercer. That does not include the cost of living.  New graduates often emerge with $150,000 to $200,000 in student debt. That crushing financial burden severely constricts a graduate’s career choices, and may defer personal goals such as buying a home, starting a family and launching one’s own practice.At the other end of the cost spectrum, a student could go law school part-time in the evening at Georgia State while holding a day job, and graduate with little or no debt. Moreover, if a student is married and the spouse’s income is important, the job market in Atlanta, compared to Athens or Macon, may be a factor.That is why I often counsel prospective law students to consider the value proposition at Georgia State. However, GSU’s admissions standards have risen. One recent survey rated Georgia State as #21 on a list of the hardest law schools to get into.

• Availability of programs directed toward a desired specialty. I mention this factor only in passing because a J.D. is a J.D.  Everyone takes the same core courses.  While one may aspire to a particular career focus and set off in that direction, that may not be where job opportunities are available. No matter what one aspires to at 22, most lawyers wind up in practice areas where they can find a job that will pay their bills.  It is common for a student to plan on a glamorous career in, for example, international arbitration, but wind up prosecuting DUI cases or defending car wreck cases for an insurance company. (There are only a handful of lawyers in Georgia who make a living in international arbitration while others aspire to get into it.)  However, a prospective student may want to examine how specific course offerings may match the student’s strong background and interests.

• Commitment of the law school’s leadership to Georgia. At the risk of being too parochial, one might also consider whether the law school’s faculty and dean are committed to maintaining strongly positive relationships with the bench and bar in Georgia. While it is good for law schools to recruit the best and brightest faculty from across the country, the individual student may also think about whether it is relevant to her to have professors and deans committed to Georgia practitioners in the long term. I’ve not taken the time to dig through faculty profiles to see how many professors from other places have bothered to become Georgia lawyers. Since leadership counts, I’ve just looked at the deans.

Some legal academics who move into a state from elsewhere place a high priority on cultivation of good relationships with trial court judges, bar leaders and practicing lawyers across the state. Others are totally centered on the academy and seldom condescend to mix with mere mortals in the bar. That is their choice. However, it is not terribly burdensome for legal academics moving into Georgia to be admitted to practice here, as they may be admitted by motion without taking the bar exam if they have been in active practice 5 of the previous 7 years (including judicial clerkships, teaching, government and in-house counsel jobs), pass the character and fitness background check, and pay a $600 fee.

Mercer University. Dean Daisy Hurst Floyd received her B.A. and M.A. in Political Science from Emory University and her J.D. from the University of Georgia School of Law. After graduating from law school, she practiced law in Atlanta with the firm of Alston, Miller, and Gaines, and then served on the faculties of the University of Georgia School of Law and Texas Tech University School of Law before going to Mercer Law School in 2004. She was admitted to practice in Georgia in 1980, and has long been an active participant in the Bar, building strong relationships among Georgia lawyers and judges.

Emory University. Dean Robert Schapiro graduated from Yale (B.A., 1984), Stanford (M.A., 1986) and Yale Law School (J.D., 1990) where he was editor-in-chief of Yale Law Journal. He for a federal district judge in New York and for Justice John Paul Stevens of the US Supreme Court. He worked with the law firm of Sidley & Austin in Washington, DC, where he practiced general and appellate litigation. He taught two years at Duke Law School before coming to the Emory faculty in 1995, and became Dean in 2012.  He was admitted to the Georgia Bar in 2005. As Dean, he and his wife regularly attend functions in the legal community in Georgia, and cultivate relationships in the legal community. He is a team player on various boards of legal organizations in Georgia.

Georgia State University. Dean Steven J. Kaminshine earned his undergraduate degree in history (summa cum laude) from New York University, and earned his J.D., with honors, from DePaul University School of Law where he served on the DePaul Law Review. Before joining the faculty, Dean Kaminshine was a partner in a labor and employment law practice in New York City and spent three years at the National Labor Relations Board in Washington D.C. A member of the Georgia State faculty since 1985, and Dean since 2005, he is not been admitted to practice law in Georgia. However, as an academic he has been active with the Labor and Employment Sections of the Georgia and Atlanta Bars and has twice chaired the Atlanta bar’s section. He is a past president of the Southeastern Association of Law Schools, and serves on its executive board.

John Marshall Law School (Atlanta) and Savannah Law School. John Marshall and its Savannah branch, Georgia’s only for-profit law school, has a new dean, Malcolm L. Morris. He is a graduate of Cornell University (B.S.), SUNY Buffalo (J.D.), and Northwestern University (LL.M.). He was previously Interim Dean at Northern Illinois University College of Law and professor at John Marshall Law School in Chicago. He has not been admitted to practice law in Georgia and so far in his new job has a low profile in bar-related organizations.

University of Georgia. Peter B. “Bo” Rutledge became Dean in 2014, chosen by a university search committee chaired by the dean of the school of pharmacy and assisted by the university’s Human Resources office. He holds a B.A. magna cum laude from Harvard University (1992), an M.Litt. in Applied Ethics from the University of Aberdeen (Scotland) and a J.D. with high honors from the University of Chicago, where he served as executive editor of The University of Chicago Law Review and was inducted into the Order of the Coif. He served as a law clerk at the U.S. Supreme Court for the Justice Clarence Thomas and at the U.S. Court of Appeals for the 4th Circuit for then-Chief Judge J. Harvie Wilkinson III.  After his clerkships, he remain in Washington, DC, where he worked at the law firms of Freshfields Bruckhaus Deringer (1999-2001) where his practice concentrated on international arbitration, and Wilmer Cutler & Pickering (now Wilmer Cutler Pickering Hale and Dorr)(2001-03), where his practice included international dispute resolution and Supreme Court matters.  Before joining the UGA faculty in 2008, he taught five years at Catholic University of America Law School (2003-08). In 2010-11, he was a Fulbright Professor at the Institut für Zivilverfahrensrecht at the University of Vienna Law School. Widely published himself, he has placed a strong emphasis on faculty scholarship, publications and placement of graduates in judicial clerkships. He is admitted to practice in Maryland, the District of Columbia, and various federal appellate courts, but after eight years at the University of Georgia he has not chosen to be admitted to practice law in Georgia. He could be a candidate for a deanship at more prestigious law schools within a few years.

All things considered, I advise students to choose a law school where one can both get a good education and graduate without burdensome debt. If cost is not a factor due to scholarship awards or strong family resources, it is really a matter of personal choice, though my personal bias is in favor of my alma mater, Emory. If a student would incur heavy debt attending any other law school, I suggest Georgia State.

———

Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board-certified civil trial attorney of the National Board of Trial Advocacy. He graduated from Furman University and Emory University Law School.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

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

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

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

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

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

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

_____________________

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

Versions of this article were published by Ken Shigley as a president’s column in the Georgia Bar Journal (August 2011) and as the chairman’s column in the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section Newsletter (Spring 2016).

James[1] had great unrealized potential. Son of a minister in another Southern state, he won admission to an Ivy League university but washed out during his first year and went home to complete college and law school. A marvelous story teller, his closing arguments could hold juries spellbound. But his cleverness was so unrestrained by mere facts that judges and other lawyers learned to distrust anything he said.

With appetites as unrestrained as his legal arguments, he loved food almost as much as liquor. Over time he became a tragi-comic figure, bulging out of polyester leisure suits with his hair permed into a frizzy halo around his bald pate. A persistent, scandalous rumor about his “fee couch” was confirmed by a college girl whose brother he defended in a murder case. Observing his habits, I thought that if faced with a list of the traditional seven deadly sins — pride, wrath, greed, sloth, lust, envy and gluttony – he might burst into an impression of Julie Andrews in The Sound of Music, singing “these are a few of my favorite things!” Despite his jolly veneer, James swirled into a vortex of alcohol and depression, lost his law practice and his family, and died alone far from home.

When I think of James and his fate, I am reminded of a conversation I overheard at the Haralson County courthouse on an autumn morning in 1978. Two grizzled men, tobacco juice staining their gray stubble and faded bib overalls, sat on a bench outside the back door of the courtroom. As they awaited probation revocation hearings, they looked like they could have been failed moonshiners of a slightly earlier era. I overheard a fragment of conversation between these two “old men,” who at the time were probably younger than I am now.

“What you in for,” asked the first.

“My wife’s been running down my character,” moaned the second.

Mournfully, the first man replied, “I ain’t got no character to run down.”

In my arrogant hubris, I chuckled about these two pathetic old losers.  Eventually, as the scar tissue of life accumulated, I came to recall their exchange in a different light, as a plaintive cry from the bottom of a deep well of existential despair by human beings who, at the end of a long road of bad habits and poor choices, had given up on life.

With our fine educations, suits, briefcases and high-tech toys, we may see ourselves as far removed from those two codgers awaiting their probation revocations. But remembering the fate of the brilliant James, we can appreciate the importance of at least aspiring to develop virtuous habits and a character worthy of being run down by people who delight in repeating those tired lawyer jokes.

Not that I am any paragon, mind you.  I’m as much a work in progress, and miss the mark as much as anyone. If my vices are less blatant than those demonstrated by James, they are no less real. The leaning towers of paper on my office floor and the change in my waistline since my last marathon four years ago demonstrate that my habits do not match my aspirations.

The Rules of Professional Conduct are necessary for drawing clear lines and setting enforceable standards.[2] Several excellent aspirational statements on professionalism and civility[3] help to gently mold our conduct to a higher standard. But none of these are sufficient to build good character.  Through the cumulative effect of what one learns from parents, grandparents, teachers, clergy, scoutmasters, mentors and professional colleagues over a lifetime, accompanied by philosophy, theology, culture and common sense, we may be habituated to virtue.[4] Even if one lacked such early mentors, as long as we are on the green side of the grass it is not too late to begin a transformation.

Georgia’s state motto, “Wisdom, Justice and Moderation,” points toward timeless “hinge virtues” upon which scores of other depend — prudence (practical wisdom), fortitude (courage), temperance (moderation), justice, faith, hope and love.

Prudence, or practical wisdom, is the quintessential lawyerly virtue, essential to competent lawyering. It involves the pragmatic ability to see reality without delusions, to face good and bad in human nature, choose means and courses of action, soberly balance risks and possibilities, and manage life, practice and finances.[5] The prudent lawyer can recognize that the perfect is often the enemy of the good, and that the hardest choices are not between good and bad but between good and good and between bad and bad.

One is reminded of the airline instruction to place the oxygen mask over your own face before your child’s face, so you can be able to help.  Similarly, practical wisdom is necessary if a lawyer is to serve clients effectively over the long haul. This prudence is “a virtue of decision making that brings together thoughtfulness, experience, and analytical reasoning with empathy and humanity,” necessary to maintain a balance between sympathy and commitment to the client or matter at hand and loyalty to larger social and ethical imperatives.[6]   By increasing the likelihood that choices are made with thoughtfulness, analysis and empathy, prudence reduces the likelihood of regret.[7]

Prudence includes the analysis of all the ways that things could go horribly wrong for the client’s case or transaction, and how to deal with those negative potentialities. It may dictate careful case selection, telling people they don’t have a case that should be pursued or that a defense is without merit. It includes a duty to refer or associate when a case is outside the scope of one’s expertise. Also included are good office management practices and employing the equipment, staff, training and effective management needed for efficiency in a practice area, which are things law schools don’t teach and many of us don’t do as well as we should.

The flip side is that while prudence may make us better lawyers, if we cannot tone it down when we leave the office, it may ironically bear seeds of our destruction. An acute recognition of all the bad things that may flow from a decision may contribute to a general pessimism or “paralysis by analysis.” This may be a “chicken and egg” issue, insofar as there is a correlation between a pessimistic personality type and the prudence required to excel in law. If pessimism and anxiety leads to chronic depression, the potential adverse effects on health and relationships are predictable.[8]

Fortitude includes courage and the firmness of mind and will required to stand resolute for a cause or client and work against all odds to see that justice is done, even at great personal, financial and occasionally even physical risk. Though years may pass in mundane routine, risking nothing more than a paper cut or normal fluctuations of income, any of us may at some point find it necessary to muster the courage to risk anger, contempt, retaliation and severe hardship for the sake of the law’s own good. There is no substitute for such fortitude.[9]

The future doesn’t belong to the fainthearted but to the brave.[10] We ought to love something larger than ourselves – truth, justice and the common good of the community and the nation. Fortitude moderates our fear so that we may endure in doing well, even in the face of apparently insurmountable obstacles. We cannot be whole without bravely stretching toward some cause larger than ourselves.  By combining prudence and fortitude in the service of worthy purposes, we can avoid the trap of smallness of the soul.

We necessarily deal with conflict, but when our clients come to us seeking vengeance, we have an obligation to counsel peace. We may face adversaries who we dare not tempt with weakness and with whom it is necessary to deal from a position of strength. But the fortitude required of us is not the same as foolhardiness or intransigence. We must remember, in the words of President Kennedy, “that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate.”[11] While there are times when a lawyer must courageously lay it all on the line, we should allow for the possibility that we may be wrong in our judgment. We must be wise in picking our battles.

Lless dramatic, but no less important, we need fortitude in the daily grind of tedious, hard and unpleasant tasks, to do what needs to be done year after year without falling into destructive patterns of avoidance, procrastination, distraction and intemperance that ruins careers and lives.

Temperance, or moderation, does not refer to my great-grandmother’s support for the Prohibitionist Party candidates in every election from ratification of the 19^th Amendment until her death. Rather, it is a reasonable, common sense, healthy moderation of habits, and maintenance of a healthy balance in professional, personal and family life.

In the movie A Time to Kill, the young lawyer reminds his burned-out mentor – who is swaying across the lawn with a bottle of liquor in his hand – of his old aspiration to “save the world, one case at a time.” The subtext was that the old warrior had lost his will to fight for justice, at least in part because he fell victim to intemperate habits. Personal moderation and temperance for us as lawyers requires reasonableness, detached impartiality, common sense and resisting temptations that would lead to dead ends – including but not limited to the temptations of substance abuse and infidelity.

Justice is a concept debated by philosophers for millennia, but a precise definition is still somewhat elusive and subjective. At root, justice embodies not just legal positivism but a sense of fairness and morality, both within the individual and in relation to others – balance, harmony and what one writer referred to as “social music.”[12] Of course, in our daily work with conflict, that music is often discordant.  For the individual practicing lawyer, our role requires a commitment both to advocate for justice for clients and to sustain the operation and the fairness in the legal system.

Remember the prophet Amos who wrote, “Let justice roll on like a river, righteousness like a never-failing stream.”[13]  Though we cannot ignore economic reality, we should not be so totally focused on money that we fail to serve the cause of objective fairness.  Few of us have opportunities to imitate the fictional Atticus Finch or to become a “drum major for justice” like the real life Martin Luther King. But in smaller and less dramatic ways we have opportunities to promote our visions of justice.  In doing so, we might keep in mind that service to others, whether organized pro bono legal work, ad hoc “low bono” labor, or work with the many forms of community service, can be “billable hours for your soul.”

Faith requires a comprehensive worldview sufficient to make sense of the harsh realities we often face in the practice of law. Running ahead of pure reason, faith sees higher and farther than our own experience can. It is not mere belief rooted in intellect, or mere trust rooted in emotion. Rather, it is rooted in the heart and, dare I say it in a secular bar journal article, in the soul of the person in relationship with a higher power.[14] Faith motivates us to persevere and to serve even when reason tells us all is lost.

Hope is directed to the future and is more than mere wishful thinking. It includes a view that out of the messy conflicts with which we must labor in the law, something good and worthwhile may yet somehow emerge.  Without hope of something better beyond our low ceiling and limited horizon, courage turns to despair. With hope, our deepest values and ideals are not meaningless subjective blips but foretastes of an objective reality, even if we are not here long enough to see it.[15]

Love in this context involves a commitment to treat others as you would have them treat you, and an unselfish concern on some level for the welfare of clients, witnesses, staff, colleagues, judges, court staff and even adversaries. It should become radically unselfish and gracious, beyond mere feeling, attraction, affection or compassion.  Without love, justice turns to cruelty.[16] But to manifest love for the unlovable, we need to develop both a kind of dangerous unselfishness and a capacity to exercise “tough love.”

Prudence, fortitude, temperance, justice, faith, hope and love.  Cynics may claim they are but hollow words signifying nothing to us, that the idea of a virtuous lawyer is an oxymoron.  Those who have done battle in courtrooms long enough to recall when bailiffs addressed all lawyers as “Colonel” can readily identify a rogue’s gallery of such lawyers who exemplify the worst public perception of the profession as callous, self-serving, devious and indifferent to justice, truth and the public good. They would try to downgrade the very concept with mockery and ridicule.  But aspiring to mold our personal and professional characters in accordance with these virtues will help equip us to fulfill a high calling as the stewards of the justice system, and remind us that despite the effects of legal education and culture, we lawyers are still humans with hearts and consciences.

Habits built upon an aspiration to adhere to these virtues may strengthen us, in the words of General Douglas McArthur when he spoke of “duty honor and country”:

They make you strong enough to know when you are weak, and brave enough to face yourself when you are afraid. They teach you to be proud and unbending in honest failure, but humble and gentle in success; not to substitute words for actions, not to seek the path of comfort, but to face the stress and spur of difficulty and challenge; to learn to stand up in the storm but to have compassion on those who fall; to master yourself before you seek to master others; to have a heart that is clean, a goal that is high; to learn to laugh, yet never forget how to weep; to reach into the future yet never neglect the past; to be serious yet never to take yourself too seriously; to be modest so that you will remember the simplicity of true greatness, the open mind of true wisdom, the meekness of true strength. They give you a temper of the will, a quality of the imagination, a vigor of the emotions, a freshness of the deep springs of life, a temperamental predominance of courage over timidity, of an appetite for adventure over love of ease. They create in your heart the sense of wonder, the unfailing hope of what next, and the joy and inspiration of life.[17]

The lawyer with a heart and soul trained through striving to develop such virtuous habits may try in some small way to emulate the fictional Atticus Finch, promoting justice, fairness and morality in one’s own daily practice.  We are not shown the fictional Finch’s daily grind of law practice in mundane situations devoid of potential for heroic drama. But perhaps at some point we too might become worthy of the scene where, beaten but unbowed, Atticus leaves the courtroom as the folk in the balcony stand and the Reverend admonishes Jem, “Stand up – your father’s passing.”[18]

[1] This article was first published as a “From the President” column at 17:2 Georgia Bar Journal 4 (Oct. 2011). The author served as president of the State Bar of Georgia (2011-12) and chair of the board of trustees of the Institute for Continuing Legal Education in Georgia (2012-13).

[1]             “James” is a composite of many lawyers encountered over the course of my career. Any recognizable similarity to an actual person, living or dead, is coincidental.

[2]             William T. Ellis and Billie J. Ellis, Beyond the Model Rules: Aristotle, Lincoln, and the Lawyer’s Aspirational Drive to an Ethical Practice, 26 T.M. Cooley L. Rev. 591 (2009).

[3]         Lawyer’s Creed and Aspirational Statement on Professionalism, State Bar of Georgia Directory & Handbook, http://www.gabar.org/related_organizations/chief_justices_commission_on_professionalism/lawyers_creed/ (viewed Sept. 5, 2011); Macon Bar Association, Assurances of Professionalism, http://www.redi.net/maconbar/prof.pdf (viewed Sept. 5, 2011);  Local Rules, Standards of Conduct, U. S. District Court, Middle District of Georgia, http://www.gamd.uscourts.gov/local%20rules/local%20rules%20amended%2012-1-09.pdf (viewed Sept. 5, 2011).

[4]             Charles P. Nemeth, Aquinas in the Courtroom: Lawyers, Judges, and Judicial Conduct 62 (2001).

[5]             Id. at 65;  Robert F. Blomquist, The Pragmatically Virtuous Lawyer, 15 Widener L. Rev. 93 (2009).

[6]             Jay Michaelson, In Praise of the Pound Of Flesh: Legalism, Multiculturalism, and the Problem of the Soul, 6 J. L. Society 98, 132 (Spring 2005).

[7]             Id.

[8]             Martin E.P. Seligman, et al, Why Lawyers Are Unhappy, 23 Cardozo L. Rev. 33 (2001).

[9]             Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 145 (1993).

[10]            Ronald Reagan, Space Shuttle “Challenger” Tragedy Address, January 28, 1986.

[11]            John F. Kennedy, Inaugural Address, January 20, 1961.

[12]            Peter Kreeft, Back to Virtue: Traditional Moral Wisdom for Modern Moral Confusion (1986) (Kindle Edition, retrieved from Amazon.com).

[13]            Amos 5:24 (NIV).

[14]            Kreeft, supra.

[15]            Id.

[16]            Id.

[17]           Gen. Douglas MacArthur, Sylvanus Thayer Award Acceptance Address, “Duty, Honor, Country, ” U. S. Military Academy, May 12, 1962.

[18]            Harper Lee, To Kill A Mockingbird (1960).

Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

Learn to do right; seek justice.
Defend the oppressed.
Take up the cause of the fatherless;
plead the case of the widow.

– Isaiah 1:17

It was a Sunday in December 1971, at my grandparents’ home in Mentone, Alabama, halfway down the hundred-mile-long plateau from Chattanooga to Gadsden that is Lookout Mountain. Within a mile radius were the simple homes, church, school and country graveyard intimately entwined with several generations of our family.

At the “children’s table” off the kitchen with my cousins, I could faintly hear the conversation of our elders at the “grownup table” in the dining room.   In my dad’s voice I heard the words “Ken” and “law school” as he told of the path I hoped to pursue after college.  The response to his announcement seemed strangely muted. I heard him explain that, similar to ministry or teaching, law could be a calling too. My grandfather, who served a lifetime as a minister all over Alabama, made some quiet expression of resigned acceptance.

We were a family of preachers and teachers, builders and farmers, solid and devout country people.  Not only had there never been a lawyer in the family in living memory[2], but so far as I knew then, no one in the extended family had even remotely considered a legal career. Until I was twelve, we had lived at Mentone, across a pasture from my grandparents. I spent many happy days roaming the woods with my dog and building my immune system in the cow pond.  My father, a principal, and my mother, a schoolteacher, took me across the state and time zone line every day for school ten miles away in Menlo, Georgia. But by the time I entered high school, my family had moved to the “big city” of Douglasville, Georgia, where at night on a then-rural hilltop restless teenagers could see the lights of Atlanta twinkling in the distance. Visits home to the mountain grew less and less frequent.

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

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

In the cockiness of youth, I laughed off my uncle’s warning. What could this good man who left school at sixteen and made a living with a hammer and saw possibly know about the moral and spiritual health of the profession to which I aspired? Nonetheless, I silently vowed to prove him wrong.

Laboring in the trenches of the law in the decades since, I have often recalled Uncle Leonard’s warning, especially on those occasions when I strayed across some line, either hazy or clear, that I should not have crossed. Moral compromises are by no means unique to the legal profession, but none of us are immune from temptation.

Uncle Leonard’s warning, delivered in the most literal, fundamentalist terms, may reveal spiritual and secular concerns about the soul of our profession, but it also contains a hidden kernel of hope when we reflect upon our lives and motivations. We all know lawyers, most in other practice areas but including some in the plaintiffs’ bar, who are disenchanted with their work, unhappy with their workaholic lifestyle, and questioning the wisdom of their career choices.

As Justice Sandra Day O’Connor observed in a speech a few years ago:

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

A novelist wrote that “[a] profession is like a great snake that wraps itself around you.  Once you are wrapped up, you are in a slow fight for the rest of your life, and the lightness of youth leaves you.”  Of a lawyer he wrote, “I saw how greatly he suffered the requirement of being clever.  It separated him from his soul, and it didn’t get him anything other than a living.”[4]    Lawyers seeking to retain their souls and some remnant of the “lightness of youth” after decades of practice must seek not only to avoid punishment by following the disciplinary rules of conduct, but also to escape indifference by reuniting our sense of humanity with our profession and, ultimately, recognizing the law as a passionate vocation.[5]

Like many of us in the plaintiffs’ bar, I labored for years on the other side, defending the interests of insurance companies and large corporations against injured individuals and families.  Stressed and unhappy in that firm, I was well on my way to the lot Justice O’Connor described.

But then an older lawyer against whom I had secured a defense verdict referred me the case of Rachel, a 19-month-old who was catastrophically brain damaged in a near-drowning in a condominium swimming pool with a defective gate and lock. After the usual conflict check and with grudging approval from the senior partner, I took the case.

When Rachel slipped away from her mom, distracted by care for a newborn sibling, she was able to enter the pool enclosure through the defective gate. She was found floating face down in the March-cold water of the pool. Due to anoxia, Rachel’s body was alive but cognition apparently was gone. Her beautiful blue eyes would track visitors around the room as caregivers tended to her g-tube, suctioned airways and exercised limbs in an effort to avoid contracture. Through a year of fighting for as much compensation as was recoverable for Rachel’s care and frequently visiting with the family, I found my heart and soul as a lawyer.

Many of us in the plaintiffs’ bar have had similar experiences in which we found a calling to “do right, seek justice, defend the oppressed, take up the cause of the fatherless and plead the case of the widow.” Insofar as our work of passionate advocacy is inspired by such a calling we can reduce our risk of falling into an “ethical winter,” or a “hibernation of the soul,” which can result in cynicism and even self-contempt among so many of our professional colleagues.[6]  But even we, when we treat law as simply a money making machine, when are subject to forgetting that “law is rooted in something bigger than the people who hand it down, that law is rooted in history and in the moral order of the universe.”[7]

Viewed with the right perspective, the law can offer among the best opportunities to help people who are hurting and to temper and resolve human conflict.[8]  Those of us who bear the scars of long legal careers, however, know all too well how easy it is to lose sight of the intrinsic values of our work when we are laboring in the muddy trenches of the law day by day, besieged with phone calls and emails, stressed out about deadlines and seemingly insoluble conflicts, struggling to cover overhead, make payroll, feed all the mouths we are expected to feed, and reserve some personal space in our lives.

But when we view our daily work as a calling to do what we were meant to do in this life, in a place where our deep gladness and the world’s hunger meet, then we may find in the work of helping people solve their problems a value and meaning that transcends our fluctuating material rewards. [9]  Blooming where we are planted, we may find our callings to serve as instruments of both justice and love in our labor on behalf of the injured and grieving families.  Personal injury lawyers who are true to their calling help clients retain dignity and independence that has been diminished by injury.

AAJ, this section and our litigation groups provide rich opportunities for us to hone our skills and preserve the rights of our current and future clients.

Compared to the infinite scale and complexity of the universe, our lives are infinitesimally small and finite.  But in this snippet of time and space we occupy, we are called to interpret the moral order of Creation into pragmatic legal solutions for the messy problems presented to us, and to use our skills to temper the chaos to which human nature gives rise.[10]  Being able to recognize this calling and our peace-making and problem-solving abilities may allow us to regain, and live with, a sense of passion and purpose in the face of difficult circumstances and never-ending temptations to ethical compromise.

Through it all, we should remain thankful for the opportunity to work and serve in the law, rekindling a more mature and probably more humble version of whatever first inspired us to pursue legal careers.  Laying aside the pretenses of professional arrogance, we can rekindle our passion for justice and pursue more conscientious and effective relationships with clients and colleagues.[11]

In the words of the prophet Micah, we should seek to “do justice, love kindness and walk humbly with our God.”[12]  In so doing, we should prudently seek ways in which we can no longer conform to the flawed patterns of this world, but instead to be transformed by the renewal of our minds.[13]

When I return to Mentone and walk among the graves of kin who followed their own callings – my great-grandfather the builder who started a church and a school, my grandfather the minister, my grandmother who read to me stories that unknowingly first launched me toward the law, my parents the educators, and Uncle Leonard who issued that stark warning – I silently pray that I might be worthy of the calling I followed in the law.

[1] Originally published by the author as a president’s column in the Georgia Bar Journal, August 2011, and later adapted for the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section Newsletter in Fall 2015.

[2] I later learned than a forgotten collateral ancestor has been a lawyer, judge and congressman in antebellum Georgia, and died of “a fit of apoplexy” in the courtroom while defending a black man against a murder charge in Americus, GA, in 1860.

[3] Sandra Day O’Connor, Professionalism, Speech at the Dedication of the William W. Knight Law Center, in 78 Or. L. Rev. 385, 386 (1999).

[4] Mark Helprin, A Soldier of the Great War 110 (1991).

[5] John L. Cromartie, Reflections on Vocation, Calling, Spirituality and Justice, in Can a Good Christian be a Good Lawyer? 139, 143 (Thomas E. Baker & Timothy W. Floyd eds. 1998); see also Schutt, supra note 2, at 93.

[6] Robert F. Blomquist, The Pragmatically Virtuous Lawyer, 15 Widener L. Rev. 93, 107 (2009).

[7] Harold J. Berman, The Crisis of Legal Education in American, in Faith & Order: The Reconciliation of law & Religion 333-34 (1993).

[8] Cromartie, supra note 7, at 143-44.

[9]  Id., at 144-145.

[10] Thomas A. Wiseman, What Doth the Lord Require of Thee? in Can a Good Christian be a Good Lawyer? 35, 39 (Thomas E. Baker & Timothy W. Floyd eds. 1998).

[11] Jacqueline Nolan-Haley, Finding Interior Peace in the Ordinary Practice of Law: Wisdom from the Spiritual Tradition of St. Teresa of Avila, 46 J. Cath. Legal Stud. 29, 39 (2007).

[12] Micah 6:8.

[13] Romans 12:2.

Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

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

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

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

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

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

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

1. Criminal Justice Reform.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. New Judicial Building.

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

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

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

1. Electronic court filing.

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

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

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

———-

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

The one time I met the late Associate Justice Antonin Scalia, he talked about how much he loved hunting quail. It is good that he was able to spend his last day in this mortal realm on a quail hunt.

Back in 2012, when I was president of the State Bar of Georgia, Justice Scalia spoke at a dinner I attended at the World War II museum in New Orleans, along with Buck Ruffin who was then unopposed to become president-elect of the Georgia Bar, and our wives. David Gambrell, a former Georgia Bar president and U.S. Senator, was receiving a lifetime achievement award at that dinner. Justice Scalia gave an inspirational speech about the Constitution, which he sought to interpret according to the original meaning of the words of the text rather than as some sort of free floating Rorschach ink blot test.  I later borrowed liberally from Justice Scalia’s remarks in a president’s column in the Georgia Bar Journal.

After the dinner, Buck Ruffin and I buttonholed Justice Scalia. I told him how much I had enjoyed his point-counterpoint appearance with Justice Stephen Breyer at a South Carolina Bar meeting in Columbia a few months earlier, and that we would love to schedule a reprise of that in Georgia. He smiled and said, “I’ve always enjoyed hunting quail in Georgia.” Buck began then planning a 2014 Symposium on the Constitution in Atlanta featuring Justice Scalia, followed by a bird hunting trip on a plantation in south Georgia. Georgia Supreme Court Justice David Nahmias, who clerked for Justice Scalia, was helpful in scheduling that. Several of the State Bar officers who were in office at that time participated in bird hunt with Justice Scalia, but by then I was out of office and not included.

In a more decent time, folks might have refrained from media comments about a Supreme Court justice’s successor until after the funeral. I’m not so naive as to think there would not have been jockeying behind the scenes, but public decorum might have delayed the public debate while the family had its time of grieving. Unfortunately, we do not live in that era. Within hours after the news of Justice Scalia’s passing, the media were buzzing with speculation and it was a topic in a televised presidential debate. Senator Cruz immediately vowed to filibuster against any nominee, no matter who it might be.

The Constitution of the United States, which Justice Scalia interpreted according to the original meaning of the text, provides at Article II, Section II:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls,  Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

President Obama should fulfill his constitutional duty to nominate someone to fill this vacancy on the Supreme Court. He should choose someone who would have been confirmed on arrival in less stridently partisan times.  Then the Senate should fulfill its constitutional duty to “advise and consent.” It should at least holding hearings and consider the nomination on its merits rather than on a purely partisan basis. Senator Cruz’s vow to filibuster against any nominee before he even knows who it will be was, to put it mildly, intemperate and unworthy of anyone who aspires to become President of the United States.

Since there is no one currently on the court who has experience in elective office, there is something to be said for appointing someone with experience in the political rough and tumble. Since there is no one on the court who has ever spent any substantial time representing individuals who bleed when they are cut, that might be a consideration as well. There is no religious test for office, but since there are currently no Protestants on the Supreme Court in a country with a Protestant plurality, there is something to be said for appointing a Protestant.

Short lists of federal circuit judges are floating in the media, including

• Sri Srinivasan (48, DC Circuit, former deputy solicitor general, Stanford JD/MBA, Indian immigrant, Hindu, confirmed by the Senate three years ago, 97-0, when Senator Cruz called him a “longtime friend”).
• Merrick Garland (63, chief judge of DC Circuit, Harvard Law, Jewish, confirmed 76-23 in 1997, viewed as a compromise pick).
• Patricia Ann Millett (52, DC Circuit, Harvard Law, wife of Navy reserve officer, former assistant solicitor general, Methodist, confirmed 55-38 in 2013).
• Paul Watford (49, 9^th Circuit, African American, UCLA Law, confirmed by 61-34 vote in 2012).
• Jane Louise Kelly (51, 8th Circuit, Duke, Harvard Law, former public defender in Iowa, confirmed 96-0 in 2013).

Hometown favorites for me  in Atlanta would be:

• Jill Pryor (52, 11^th Circuit, Yale Law, 26 years in private practice representing both plaintiffs and defendants, confirmed 97-0 in 2014 as part of a package deal to fill six federal judgeships in Georgia).
• Julie Carnes (65, 11^th Circuit, former Assistant U. S. Attorney and district judge, UGA Law, Fulton County State Court building is named after her father, confirmed 94-0 in 2014 as part of the same package deal).
• Georgia Supreme Court Justice David Nahmias, who was on Harvard Law Review with President Obama, clerked for Justice Scalia and served in U.S. Department of Justice and as U.S. Attorney under President George W. Bush, might be a prospect under a Republican president.
• Justice Scalia rightly criticized the composition of the Supreme Court as a “select, patrician, highly unrepresentative panel of nine,” all educated at Harvard or Yale law schools, with four of nine hailing from New York City. It would be healthy to look to the midwest or south and for candidates who are outside the mold of “tall building lawyers.”

Thinking outside the box of usual SCOTUS picks, the President might consider senators of his party who get along fairly well with Senate Republicans colleagues. That list might include:

• Chris Coons (52, Delaware, Judiciary Committee member, grad of Amherst, Yale Law, Yale Divinity, Presbyterian, former county executive).
• Cory Booker (38, New Jersey, Rhodes Scholar, Stanford and Yale grad, former mayor of Newark, African American Baptist, worked with Republican co-sponsors on criminal justice reform bill).
• Amy Klobuchar (55, Minnesota, Yale & Chicago Law, former prosecutor,  Congregationalist).
• Sheldon Whitehouse (60, Rhode Island, Yale and Virginia Law School, former US Attorney and state attorney general, Judiciary Committee member, Episcopalian).

Governors of the president’s party  who might be considered could include:

• Jay Nixon (60, Missouri, former state attorney general, University of Missouri Law School, Methodist, real world experience practicing in his hometown and in state senate before election as attorney general).
• Steve Bullock (49, Montana, former state attorney general, Columbia University Law School, some time in hometown private practice, United Church of Christ).
• Maggie Hassan (57, NH, background in private practice and as hospital counsel, Brown & Northeastern Law School, United Church of Christ, now running against an incumbent Republican Senator, which could make her a wild card pick because Republicans might want her out of that race).

Presidents usually prefer to appoint Supreme Court justices who are roughly 50 or younger. (I have some personal experience at the state level with “aging out of consideration” for a judicial appointment.) Politically, it might be prudent to select someone who has not been the subject of a bitter partisan confirmation battle in the past.  By that standard, the list might be narrowed to Judges Srinivasan, Kelly and Pryor, Senators Coons, Klobuchar and Booker,  Governor Bullock, and perhaps others.

————————–

Ken Shigley is a past president of the State Bar of Georgia and board-certified trial attorney in Atlanta

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

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

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

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

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

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

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

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

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

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

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

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

—————-

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

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:

• 

  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.

• 

  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.

—————-

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.

——————

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.