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

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

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

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

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

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

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

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

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

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

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

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

——————

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

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

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

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

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

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

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.

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

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

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

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

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

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

1. Criminal Justice Reform.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. New Judicial Building.

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

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

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

1. Electronic court filing.

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

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

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

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

GPS technology is one of the great conveniences of life in the 21^st century. When it works right it enables us to find our way through unfamiliar areas with ease.

Other times it can lead us terribly astray.

But at all times we should follow the device directions by entering destination information while safely parked and use the “human override” of common sense is following the driving directions.

Today in Atlanta, we have a tragic example of the importance of keeping those principles in mind.

Police report that King Fareed from North Carolina was focused on his phone’s GPS directions when he got lost near the Atlanta airport, and made an improper U-turn into the path of an approaching motorcyclist coming the opposite direction on Sullivan Road in College Park. The motorcyclist, Jamel Houseworth, was killed, giving rise to a wrongful death claim for his survivors.

Having flown into a lot of cities, picked up rental cars and headed out into unfamiliar streets relying on GPS directions, I can well imagine the disembodied voice of the GPS saying to make a legal U-turn as soon as possible. The potential for unsafe distraction is huge.

According to a news report from WSB TV, police are charging Fareed is being charged with involuntary manslaughter, improper U-turn and failure to use due care in use of an electronic device.

The pertinent Georgia code sections are:

O.C.G.A  § 40-6-393( c ):

Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163 [passing a school bus], subsection (b) of Code Section 40-6-270 [hit and run], Code Section 40-6-390 [reckless driving] or 40-6-391 [driving under influence of alcohol or drugs], or subsection (a) of Code Section 40-6-395 [fleeing police officer] commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3 [up to $1,000 fine and 12 months in jail].

O.C.G.A  § 40-6-121. U-turns, when prohibited

No vehicle shall be turned so as to proceed in the opposite direction:

(1) Upon any curve;

(2) Upon the approach to or near the crest of a grade where such vehicle cannot be seen by the driver of another vehicle approaching from either direction;

(3) Where such turn cannot be made in safety and without interfering with other traffic; or

(4) Where a prohibition is posted.

O.C.G.A  § 40-6-241.1. Wireless telecommunications device use prohibited

(b)(1) No person who is 18 years of age or older or who has a Class C license shall operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data.

(2) No person shall operate a commercial motor vehicle on any public road or highway of this state while:

(A) Holding a wireless telecommunications device to conduct a voice communication;

(B) Using more than a single button on a wireless telecommunications device to initiate or terminate a voice communication; or

(C) Reaching for a wireless telecommunications device in such a manner that requires the driver to maneuver so that he or she is no longer in a seated driving position properly restrained by a safety belt.

Here are some important safety tips for using a GPS in driving:

1. Remember that driving safely job one. It is more important than navigation. Better to get off course and lose a little time than to make an unsafe movement that could cost a life.
2. Be extra careful in familiarizing yourself with operation of the GPS unit. If using one with which you are not intimately familiar, take time to read product directions and get oriented to its operation while you are sitting still in the parking place before you even start to drive.
3. Don’t program the GPS while the car is moving. Enter the destination before you start. If you need to cancel or change a destination, pull over and stop in a safe place to do it.
4. Learn to use voice directions from the GPS. Make sure you have that working audibly before you start to drive. Only rarely should you glance at the GPS screen.
5. Mount the GPS out of driving sight lines so that it will not block your view of the roadway.
6. Use common sense to override GPS misdirection. If the GPS tells you to do down a one way street or the cart path of a golf course, go by what you see on the ground rather than what the electronic device tells you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

With over 2,500 members nationwide, the section includes specialized litigation practice groups on Trucking Litigation, Bus Litigation, Traumatic Brain Injury, Spinal Cord Injury, Motorcycle Litigation, Bicycle Litigation, Resort Torts Litigation and Inadequate Security Litigation.

A primary function of the section is to provide high quality national continuing legal education (CLE) programs. Shigley appointed lawyers to be in charge of developing programs for meetings in Boca Raton (February 2016), New Orleans (April 2016) and Los Angeles (July 2016). The section will also seek to increase its offerings of highly focused webinar programs. Shigley has been a frequent speakers at Georgia and national CLE programs for more than 20 years. He has served as chair of the board of trustees of the Institute for Continuing Legal Education in Georgia and as a trustee of the Institute for Continuing Judicial Education in Georgia.

Shigley also appointed people to be in charge of generating contributions to the existing document depository, the section’s email listserv, newsletter and participation in the AAJ Political Action Committee on a bipartisan basis. He is recruiting state liaisons for each of the 50 states and District of Columbia to assist with these functions as well as a study of inflation adjustments in minimum auto insurance requirements in the states.

Other officers of the section are:

Chair-Elect – Wade F. Suthard (Elizabeth, NJ) Responsible for planning and coordinating continuing legal education programs.  He will become section chair at the July 2016 convention in Los Angeles.

Vice Chair – Kenneth H. Levinson (Chicago, IL) Responsible for promoting and growing the Section’s Document Library and Listserv.

Secretary – Matthew A. Nace (Washington, DC) Responsible for long range planning, updating of bylaws as well as traditional Secretary duties.

Newsletter Editor – Jennifer Leonhardt Ojeda (Atlanta, GA) Responsible for soliciting articles and content for the Section’s quarterly newsletter.

Parliamentarian – Jason Studinski (Plover, WI) Membership Coordinator: Responsible for coordinating membership drives and recruitment efforts. Responsible, with the Section Chair and AAJ staff, for informing all Section members about Section meeting, education programs, and events as well as all other relevant event information. PAC Coordinate state liaisons

Immediate Past Chair – Robert L. Collins (Houston, TX) Liaison with AAJ and Other Sections. (in particular, with the Litigation Group and Section Oversight Committee and the New Lawyers Section).

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Ken Shigley is an Atlanta-based attorney whose practice focuses on serious personal injury and wrongful death cases. He is past president of the State Bar of Georgia, a certified civil trial attorney of the National Board of Trial Advocacy and lead author of Georgia Law of Torts: Trial Practice and Preparation.

Although texting and driving is not illegal in all states yet, it certainly is a dangerous activity anywhere you go especially on touchscreen phones that require more attention to hit the correct key. There are currently 43 states that ban text messaging for all drivers. Of the 7 states without an all driver texting ban, 4 prohibit text messaging by novice drivers. While some drivers can resist the urge to use their phone while behind the wheel, it is not always so easy for some. An app called SafeCell makes it easier to stop texting while driving by offering a cash-equivalent rewards at many retailers.

SafeCell also takes the guesswork out of complying with calling and texting laws that can vary by state, county and city by pushing current cell phone use laws to your phone using GPS and a proprietary database of all the cell phone use and texting laws. This means in addition to earning rewards you can avoid getting a ticket for a local law you didn’t know about.

When the app detect that you are traveling over five miles per hour and in a zone with applicable distracted driving laws it will disable phone, texting, and email capabilities. If you need to make an emergency call you can click the “Place Emergency Call button” to interrupt the app. While using the app you have the option of sending an auto text message to people who call or text stating that, “The person you are trying to reach is driving and will receive your message upon reaching their destination.”

The rewards accrue for every mile driven while obeying any applicable laws. If there are no laws in effect, but you practice safe driving you will still earn rewards. Not obeying laws while driving will take points from your rewards. If you need to use your phone or are a passenger you can pause or stop the app, but no reward points will be earned during this time.

500 miles logged equals $5 in rewards available for redemption at more than 300 retailers including Apple, Amazon, Cabela’s, Macy’s and many more. The rewards are issued in $5 increments and max out at $250 a year.

In addition to keeping you in line with the law and giving rewards, SafeCell creates driving logs for parents or employers to use in monitoring their kids or employees’ driving habits. These detailed trip reports provide added incentive to obey the law and safety concerns regarding cell phone use while driving.

The app is currently available for Apple and Android devices.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. 

We have all seen drivers distracted by their electronic devices behind the wheel. The Federal Motor Carrier Safety Regulations now forbid interstate truck drivers from texting or talking on a hand held cell phone while driving. But recently we were hired in a multiple fatality crash on a Georgia interstate highway in which the truck driver admitted to police that he did not see the vehicles he hit because he was distracted by talking on his cell phone.

In January 2014, the National Transportation Safety Board released its 2014 Most Wanted List, the top 10 advocacy and awareness priorities for the agency for 2014, which include improving operational safety on mass transit, impaired driving, and distracted driving.

Included in this “top 10” list is to treat distracted driving like drunk driving.  Accident investigations and safety studies conducted by the NTSB in all modes of transportation underscore the dangers of using portable electronic devices while operating a car, train, plane or marine vessel. It is the hope of the NTSB that all instances of distracted driving will be treated in the same manner as driving under the influence. In addition to banning the use of these devices while driving the NTSB will continue education and company policies to help reinforce laws and regulations by explaining the dangers of distraction and what companies expect from their employees.

Occupant protection is also new to the Most Wanted list for 2014. While preventing accidents is always the goal, the NTSB says saving lives and reducing injuries in the event of an accident is also critical. Increasing the use of available occupant protection systems and improving crashworthiness to preserve survivable space can mean the difference between life and death.

Also new to the list this year is passenger vessel safety. Between 2000 and 2010, the NTSB has investigated several accidents involving passenger vessels. For decades, NTSB accident investigations involving passenger vessels revealed in numerous cases that the cause of an accident was not the failure of the vessel but the lack of good safety practices that led to the loss of life and injuries. It is the hopes of the NTSB that when these new safety measures are put into action there will be far fewer fatalities in the nation.

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

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

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

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

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

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

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

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

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

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

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

Most states do not allow assignment of legal malpractice claims to others for substantial public policy reasons related to protection of the attorney-client relationship.

That may be the shortest-lived Supreme Court decision in Georgia history. This week the legislature passed HB 359 on unclaimed property, into which a succinct amendment had been inserted, to bar assignment of legal malpractice claims. It awaits signature by the Governor.

It took only eight days from the Supreme Court decision until passage by the legislature.

Hearsay as a legal rather than merely social concept is part of the law of evidence. The Georgia rule on hearsay will change on January 1^st, when the new Evidence Code becomes law.

The new Georgia Evidence Code, based more or less on the Federal Rules of Evidence, will go into effect on January 1, 2013. The new Evidence Code was a long-time project of the State Bar. Sponsored in the State Senate by then-Senator Nathan Deal in 1990, it hit a roadblock with then-House Speaker Tom Murphy who did not want to be required to learn and practice under a new set of evidence rules. The project was revived when Speaker Murphy lost re-election, and was passed by the legislature and signed into law by Governor Nathan Deal in 2010, when I was president-elect of the State Bar, and will take effect next month.

Under old Georgia evidence law which remains in effect until January 1, 2013, inadmissible hearsay is illegal evidence and has no probative value even when there is no objection,

Under the new law, O.C.G.A. § 24-8-802, which goes into effect on January 1, 2013, when inadmissible hearsay is not objected to, the objection will be waived and such evidence will legal and may support the result of trial.

A general definition of hearsay is evidence that does not derive its value solely from the credibility of the witness but rests mainly on the veracity and competency of another person. O.C.G.A. § 24-8-801(c) defines hearsay as any statement other than one made by the declarant while testifying in the trial or hearing offered to prove the truth of the matter asserted. A “statement” of a declarant is an oral or written expression in words or nonverbal conduct intended as an assertion, i.e., the declaration of a specific relevant fact.

In Georgia civil cases, the admissibility of silence or acquiescence by a party to a statement which, if untrue, the party would be expected to deny will be decided preliminarily by the trial judge under O.C.G.A. § 24-1-104(b). The trial judge should admit the evidence if a reasonable jury could find that a response was called for if the statement was untrue. If admitted, the judge will instruct the jury on this matter for their ultimate determination as to the weight, if any, this evidence will be given.

For a comprehensive summary of hearsay under the new Evidence Code, see Steve Harper’s article, “Changes affecting hearsay under the new Georgia Evidence Code,” in the Fulton County Daily Report.

Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, and double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle).  In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.

Do advocates of more “loser pays” rules offer a solution in search of a problem?

Are people unaware of the “loser pays” sanctions that are already part of Georgia law?

As discussed in previous posts, Georgia already has five statutory “loser pays” rules, four of which passed in tort reform legislation during the time I have been practicing law, and one we have had since the Civil War. Georgia needs a sixth “loser pays” about as much as it needs a sixth law school at a time when graduates of the existing law schools have a really hard time finding jobs.

Georgia’s five “loser pays” rules are:

1. Offer of judgment / offer of settlement. O.C.G.A. § 9-11-68, passed as part of the 2005 tort reform legislation, provides for an award of attorney fees and expenses against a party that refuses to accept a settlement  offer and at trial does not improve upon the rejected offer by at least 25%.
2. Post-verdict jury award due to frivolous claim or defense. O.C.G.A. § 9-11-68(e), also part of the 2005 tort reform legislation, provides a remedy to recover “reasonable and necessary attorney’s fees and expenses of litigation.” Upon motion of the prevailing party when a verdict or judgment is rendered, in a bifurcated proceeding the finder of fact may determine whether the opposing party had presented a frivolous claim or defense, and then award damages against the party presenting the frivolous claim or defense.
3. Motion for fees and expenses where claim or defense was without substantial justification. O.C.G.A. § 9-15-14, enacted in 1986 tort reform legislation, provides for a motion for award of fees and expenses against a party that had asserted a claim or defense “that lacked substantial justification or that the action, or any part thereof, was interposed for delay or  harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures.”
4. Abusive litigation tort claim.  O.C.G.A. §§ 51-7-80 et seq., enacted in 1989 tort reform legislation, created a statutory tort of abusive litigation giving rise to liability against “any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another . . . if such person acts [w]ith malice; and [w]ithout substantial justification.” The claim for abusive litigation is initiated by a notice, with statutory proof of delivery, giving the other party an opportunity to voluntarily drop the allegedly abusive claim,defense, motion or position.
5. Code of 1863 – claim for fees and expenses due to bad faith, stubborn litigiousness, unneccessary trouble and expense. OCGA § 9-6-11, which has been in Georgia law since its enactment with the Code of 1863, provides for an award of attorney fees and expenses of litigation against a party who has acted in bad faith, has been stubbornly litigious, or has caused unnecessary trouble and expense.

I’ve always heard that if it ain’t broke, don’t fix it. Five “loser pays” rules is enough. Short of automatically taking the home and first-born child of anyone who loses in court, what more can anyone ask in the way of “loser pays” rules?

Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle).  In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.

The oldest of the five “loser pays” rules in existing Georgia law has been in effect for nearly 150 years, having first appeared in the Code of 1863.

That Code was largely the work product of Thomas R. R. Cobb, son-in-law of Chief Justice Lumpkin and a foremost Georgia legal scholar of his day. He was a Confederate brigadier general who died at the Battle of  Fredericksburg only a couple of weeks before the Code for which he was largely responsible went into effect. His home in Athens is now operated as a museum.

Thomas Cobb’s “loser pays” rule, now recodified at O.C.G.A. Section 13-6-11, provides for an award of attorney fees and expenses of litigation against a party who has acted in bad faith, has been stubbornly litigious, or has caused unnecessary trouble and expense.

The “bad faith” prong requires bad faith in the transaction from which the lawsuit arises. Bad faith requires more than bad judgment or negligence. Rather, the statute requires a dishonest purpose or some “moral obliquity” and implies “conscious doing of wrong” and a “breach of known duty through some motive of interest of ill will.”

The “stubbornly litigious” and “unnecessary trouble and expense” prongs of the statute require more than mere refusal to pay a just debt. If there is a bona fide controversy about liability or the amount of damages, fees and expenses cannot be recovered under these prongs.

Whether or not a bona fide controversy exists, for purposes of determining whether a plaintiff is entitled to award of attorney fees on grounds that opposing party has been stubbornly litigious or has caused the plaintiff unnecessary trouble and expense, is normally matter for jury to decide. It is for the jury to determine whether there was a bona fide controversy unless the facts preclude such a finding as a matter of law.

I do not suggest adding yet another “loser pays” provision to the five already included in Georgia law. My opinion, based on 35 years experience practicing law in Georgia for both plaintiffs and defendants, is that our five existing “loser pays” rules are enough.  We need a sixth “loser pays” rule about as much as we need a sixth law school in Georgia. However, if it were deemed necessary to do so for purely political reasons, perhaps one approach could be to make OCGA 9-11-68 available to defendants as well as plaintiffs. If that were done, both plaintiffs and defendants could be held accountable for bad faith in the underlying transaction, stubborn litigiousness, and causing the other party undue trouble and expense.

See summary post, “Does Georgia need more than five ‘loser pays’ rules?”

Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle).  In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.

O.C.G.A. § 9-15-14, enacted in 1986, provides for a motion for award of fees and expenses against a party that had asserted a claim or defense “that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures.”

This covers any “claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.”

However, this does not apply if the court determines the claim or defense was asserted in a good faith attempt to establish a new theory of law in Georgia if the new theory is based on recognized precedential or persuasive authority.

A motion under this statute may be filed at any time up until 45 days after final disposition of the action.

While the person against whom this claim is made must be given notice of the right and opportunity to confront and challenge the value and the need for the legal services claimed, no actual hearing is required if no response is submitted. Tavakolian v. Agio Corp., 304 Ga. App. 660, 697 S.E.2d 233 (2010).

The procedure does not apply in magistrate courts, but does apply in appeals from magistrate courts.

See summary post, “Does Georgia need more than five ‘loser pays’ rules?”

Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle). In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.

Against this cultural background, the news story of a New Jersey lawsuit has rubbed a lot of people the wrong way. According to an Associated Press report, Elizabeth Lloyd, a woman in Manchester Township, NJ, has sued an 11-year-old Little League catcher who two years ago overthrew his pitcher and accidentally struck her at a picnic table near the bullpen.

My personal reaction to this news story is that, if it is accurate, the lawyer who filed the suit showed poor judgment by filing a case could serve as material for propaganda for those who would strip the rights of people who have legitimate injury claims. It will probably appear soon in the “most ridiculous lawsuit of the week” email from a prominent “tort reform” organization.

Georgia lawmakers should note that this case would be dead on arrival in Georgia courts for at least two reasons.

First, it has long been the law in most of the United States that baseball spectators assume the risk of being hit by stray balls. There are similar holdings regarding the assumption of risk by race fans in the racetrack infield, golfers on a golf course, etc. Under current Georgia law, we have the case of Dalton v. Jones, 260 Ga.App. 791, 581 S.E.2d 360 (2003), in which Braves star Andruw Jones threw a ball that went into the stands striking a spectator. Based on a long line of prior cases, the Court of Appeals affirmed summary judgment for the defendant as the baseball spectator “must be presumed to know that there is a likelihood of wild balls being thrown and landing in the grandstand or other unprotected areas.”

Second, under current Georgia law, we have a rule that a child under the age of 13 is immune from tort liability. O.C.G.A. § 51–11–6; Horton v. Hinely, 261 Ga. 863, 413 S.E.2d 199 (1992); Hatch v. O’Neill,231 Ga. 446, 448, 202 S.E.2d 44 (1973).

Creative lawyers can always come up with arguments to try to get around clear legal rules, but current Georgia law also has five fee-shifting provisions, at least a couple of which could provide sanctions for filing such a frivolous lawsuit.  See, e.g., O.C.G.A. § 9-11-68 and 9-15-14.

I urge my friends in the General Assembly to consider, before you start citing this New Jersey news story as a reason to mess up Georgia law, to consider that Georgia law already provides ample protection against such a  lawsuit here.

I do not expect any favoritism from anyone as cases must be decided on their merits.  But if a friend or family member has a catastrophic injury or wrongful death case, would it be smarter to hire a lawyer based on a sleazy TV ad or to hire one who has recognized credentials and is known to decision makers?

Whether you choose me or someone else, by all means choose a serious lawyer for any serious case. Understand that the lawyers who spend millions on TV ads operate settlement mills, never take cases to trial, and insurance companies know they will generally settle for 10% of fair case value.

A third of a century trekking between Georgia courts, first in a single rural circuit and then more or less statewide, has made me a minor connoisseur of courthouses, the most visible physical infrastructure of the judicial system. I have tried cases in a courthouse across the street from a railroad track where cross-examination was frequently interrupted by passing freight trains. In courthouses where birds flew through open windows and found perches near the high courtroom ceiling and in courthouses that would have been a great movie set for “To Kill a Mockingbird.” I have tried cases in courthouses that resembled a poorly designed 1950s motel, in a “law mall” resembling an enclosed shopping center and in an architectural gem that could be a post-modern capitol of a small state.

The centrality of courts in American life is obvious when you drive down a two-lane blacktop into the typical county seat town. On a square near the intersection of main roads stands a Neoclassical/Greek Revival/Colonial/Victorian/Romanesque/Beaux-Arts/Classical structure built in the 19th or early 20th century. A few burned and were replaced by structures for which surely no architect would claim credit, but many old courthouses have been beautifully renovated. In a number of growing counties the historic courthouse on the square has become a museum, replaced by a larger and more efficient “justice center” several blocks away. However, the centrality of the courthouse is still marked by the historic placeholder.

Before the American Revolution, when power resided with distant officials in London, the functions of local bailiffs (who sometimes acted as judges then rather than security guards), magistrates and justices of the peace – often illiterate and lacking even rudimentary legal training – were carried out in the informal settings of homes, taverns, churches or meeting halls. In the older colonies to the north small brick county courthouses began to appear in the early 18th century. In the younger colony of Georgia, where both lawyers and rum were initially prohibited, a year after the 1733 founding of Savannah a one room “Tabernacle and Court House” was included in the town plan. By the time of the Revolution a brick courthouse was built at Wright Square, while our other 11 colonial parishes apparently had no more than a crude log court building. In 1777, the first Georgia constitution created eight counties and provided for erection of a “court-house and jail” in each of them, symbolic of the transfer of political sovereignty from a distant king to the local people.

Over the next several generations of rapid growth, settlers and surveyors spread westward, filling the land they took from the native inhabitants and dividing it into a multitude of counties. In Georgia, the idea was that every farmer with a horse and wagon should be able to get to the county seat and back in a day. New counties proliferated until we hit a maximum of 161 before the merger of Fulton, Campbell and Milton in 1931, after which the constitution was amended to limit us to a mere 159 counties.

Wherever a new county was formed, construction of a courthouse was one of the first public acts, along with the basic “hard infrastructure” improvements of mule-scraped dirt roads, wooden bridges, and eventually railroads, telephones, rural electrification and paved roads. Scattered across rural Georgia today are a few century-old courthouses that stand almost alone among the fields and pastures, monuments to the aspirations of the founders of a newly formed county that was bypassed by railroads and major highways.

In the years after Alexis de Tocqueville described lawyers as America’s “natural aristocracy” that served as a conservative restraint on the excesses of temporary majorities, the increased professionalization of law and architecture led to construction across the country of hundreds of courthouses, proud structural symbols of democracy, law, aspiration, free enterprise and prosperity. Courthouses were the core of infrastructure around which were built train depots, cotton gins, factories, warehouses, schools, churches, libraries and eventually hospitals. Upon such foundations many Georgia communities were built.

Political discussions of public infrastructure usually focus on “hard infrastructure” required to support commerce and quality of modern life—highways, bridges, seaports, airports, rails, dams, reservoirs, water and sewer systems, the electric power grid, natural gas and petroleum pipelines, telecommunications, waste management systems and so forth.

However, “soft infrastructure” is just as important. The services of education, health care and financial systems are key components of the “soft infrastructure.” For example, without a world-class system of education for all our youth, our nation cannot preserve its pre-eminent role in the global economy of the 21st century. It is imperative that our state and local communities place priority on making our public schools competitive with the best in Shanghai, Singapore and Helsinki, equipping our children and grandchildren with competencies in math, science and creativity to be able to excel in the “flat world” of a global economy knit together through technology.^[4] Losing our edge in education, we are vulnerable to economic decline and all that implies. A young lawyer seeking a path for public service could do worse than to serve as a volunteer tutor, become active in PTA leadership or run for the local school board with a clear focus on making their local schools competitive with the best in the world.

A strong, independent judicial branch of government is also an essential component of “soft infrastructure.” Judicial independence is periodically attacked from both right and left, depending upon whose ox was most recently gored. Any of us may passionately disagree with and bitterly criticize particular court decisions. However, attacks on judicial independence often come from folks who place their own agendas ahead of the common good or who slept through civics class.
Economic theory generally supports the idea that high-quality courts and judicial independence facilitate economic growth. Our courts uphold both public order and the rights of citizens, enforce contracts and protect property, provide an orderly manner to obtain compensation for wrongs done, promote stability, and by doing so encourage the investment necessary for economic development.

Investments in high-quality, independent courts can promote a “virtuous cycle” where relatively modest expenditures on court improvements enhance economic growth.^[6] Judicial independence is economically important because it serves as a mechanism for the government to turn its simple promise of equal justice for all into a credible commitment. It increases predictability for businesses and individuals so they may have a broader planning horizon necessary for higher levels of investment in machinery and human capital. This empowers higher degrees of specialization, which in turn promote economic growth. Independent judiciaries, therefore, are conducive to high-income levels and growth and facilitate higher tax revenues for the state.^[7]

Some economists have suggested that countries with legal systems based on the common law have more highly developed financial markets than civil law countries because the common law provides more secure protection of property and contract rights, creditors and minority shareholders, all of which are keys to the cost of capital. The root of such a distinction may not be in substantive differences in legal rules, but because of differing assumptions about the roles of the individual and the state. The common law has been associated with fewer government restrictions on economic and other liberties. The bottom-up nature of the common law tradition, built upon human experiences in thousands of cases, as distinguished from a top-down approach in a predominantly autocratic or regulatory state, may be seen as a proxy for the intent to limit rather than strengthen the state, and to preserve rather than erode the rights of individuals. Some also suggest that the common law’s adversarial adjudication process tends to result in the survival of efficient and the demise of inefficient rules.^[8]

In countries such as ours with systems based upon the common law tradition, judges are independent officials occupying a high-status office, whereas in systems outside the common law tradition judges are often civil servants of relatively low-status without independent authority. An independent judiciary serves to fragment governmental power and thus restrain the power of the state to run roughshod over the personal, property and economic rights of individuals. That is a key distinction between the constitutional systems of the United States and other countries, such as the old Soviet Union, where constitutions may look great on paper but are not enforced to restrain the power of authoritarian political systems. It is only an independent judiciary that can assure that the powerful cannot crush the weak with impunity and that political winners do not annihilate anyone who unsuccessfully opposes them.

Judicial independence faces many challenges, but perhaps the greatest threat is the erosion of judicial pay to the extent that Chief Justice John Roberts has said approaches a “constitutional crisis.” If the courts are to maintain their position of respect, strength and independence, judgeships should be attractive to successful lawyers in the prime of life. No good lawyer should be forced to choose between accepting a judgeship and sending his or her children to college.

Chief Justice Roberts has pointed out that from 1969 to 2006, inflation-adjusted federal judicial pay declined 23.9 percent while the average U.S. worker’s wage, adjusted for inflation, rose 17.8 percent, for a net gap of 41.7 percent. This left judicial compensation below that of typical mid-level (and a few first-year) associates in many large law firms.^[9] Moreover, in 1969, a federal district judge earned 21 percent more than deans at top law schools and 43 percent more than senior professors at those schools, but by 2006 earned about half as much as top professors at such law schools. The judiciary, according to Chief Justice Roberts, will soon be restricted to “(1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase.”^[10] The comparative numbers in this analysis have surely changed during the severe recession of the past few years but the core fact of erosion of judicial pay remains true. Much the same diminution of purchasing power of judicial power has occurred in Georgia’s judicial system, though the wide variations among local supplements for superior court judges and the mix of full-time and part-time state court judges make a precise comparison quite complex.

While surprisingly few judges leave office before retirement explicitly because of the pay gap between judicial salaries and what they would expect to earn in private practice, the lagging compensation does affect both judicial morale and the talent pool from which judges are drawn. In the 1950s, two-thirds of federal judicial appointees came from the private sector. Today that is nearly reversed, with more than 60 percent coming from the public sector.^[11]

Certainly there are many superb judges whose prior careers had been primarily in the public sector. In vetoing a judicial pay raise, a former governor said he was impressed by the “quality and character of those who offer themselves for public service in the state judiciary.”^[12] However, that did not take into account the trend, especially in metropolitan areas, to draw judges primarily from public sector jobs because judicial office requires too great a financial sacrifice for lawyers in their prime who have been successful in private practice. I have heard judges comment that public service is much more palatable when one has a very highly compensated spouse or a strong base of family wealth. One wag even suggested that the solution for lagging judicial salaries is to require that judicial aspirants “marry rich.” In any event, life experience in the trenches of private law practice – taking entrepreneurial risks, representing paying clients and making payroll – is a different and valuable form of preparation for judging than a career spent primarily in the public sector.

A more subtle impact may be that, at least in the federal system in major metropolitan areas, lawyers who are willing to accept huge pay cuts from lucrative partnerships at major law firms in order to become judges may be ideologically motivated. There must be a strong motivation for an equity partner at a top law firm to take a staggering pay cut in order to become a judge.^[14] Some contend that, at least for those for whom judicial office would involve the greatest lost opportunity cost due to disparity with fairly secure private practice income in a large firm, such motivation may be, at least in part, driven by the opportunity to indoctrinate. Judges ought not be “minor league politicians” seeking to make law rather than apply the law. While this does not appear to be a major problem in Georgia today, it is a potential concern to be addressed.

Beyond the core issue of funding, there are many other issues that a 21st century judicial system must address regarding organization, structure, case flow management and court technology. Last spring I had a conversation with Hon. David Emerson in Douglas County, currently president-elect of the Council of Superior Court Judges, about electronic court filing. He commented that we ought to step back and ask what we want the court system to look like in 20 years. Following up on that suggestion when I became president of the State Bar, I appointed a Next Generation Courts Commission,^[16] chaired by Hon. Lawton Stephens of Athens. It includes judges, clerks and administrators representative of every class of courts in the state, legislators and practicing lawyers. The commission is divided into five hard working subcommittees, each of which has a meaty agenda of issues to address: business process improvement, technology, education & outreach, program improvements & expansion and funding. I expect that they will help determine the path to improve the judicial infrastructure for Georgia’s future.

A judicial branch of government that is independent, adequately funded and compensated and equipped for efficiency is essential infrastructure for both the liberty of our citizens and the growth of our economy. Money allocated to support a strong and independent judicial branch is money well invested. As Alexander Hamilton put it, “[t]he independence of the judges once destroyed, the constitution is gone, it is a dead letter; it is a vapor which the breath of faction in a moment may dissipate.”
Kenneth L. Shigley is the president of the State Bar of Georgia and can be reached at ken@carllp.com.

Tough on Crime, Smart on Crime

By Kenneth L. Shigley

My first job after law school was as a prosecutor in a rural judicial circuit. Soon after joining the district attorney’s office, I assisted in a death penalty trial for the rape and murder of a young girl.  In such cases I looked into the heart of evil, prosecuting dangerous criminals from whom we needed to protect decent citizens.

In other cases, it also became apparent that perhaps 85 percent of those I was prosecuting would probably not have been in trouble but for alcohol, drugs and mental health issues, were not prone to violence and were generally more dangerous to themselves than anyone else. They deserved some punishment but did not need to become long-term tax burdens. That is pretty much what I hear from many judges and prosecutors today. Back then, of course, lacking the concept of drug and DUI accountability courts or coordination with addiction or mental health counseling resources, our only solutions were prosecution and incarceration.

Three decades later, upon my installation as State Bar president, Gov. Nathan Deal appointed me to the new Special Council on Criminal Justice Reform, along with experienced judges, a district attorney and several legislators. The council was formed to address the fact that Georgia has the fourth-highest incarceration rate in the country with one in 70 Georgia adults behind bars and one in 13 under some sort of correctional supervision. Georgia’s prison population has grown 35 percent over the past decade. If we do nothing, it is projected to grow 8 percent more the next five years, costing an additional $264 million. This is the cumulative result of two decades of policy decisions that have sent more people to prison and held them there longer.

Those who complete long mandatory sentences generally emerge with pocket change, a bus ticket and no marketable skills except those learned from other inmates. People caught in the vicious cycle of addiction and recidivism are unavailable for productive employment and responsible parenting of children they help bring into the world.

These goals were laid out for the Criminal Justice Reform Council: (1) address the growth of the state’s prison population, contain corrections costs and increase efficiencies and effectiveness for better offender management; (2) improve public safety by reinvesting a portion of the savings into strategies that reduce crime and recidivism; and (3) hold offenders accountable by strengthening community-based supervision.  I am convinced that Governor Deal and other state leaders are absolutely sincere about salvaging wasted lives as well as reducing the budget.

The council worked through the summer and fall and in November released our findings and recommendations. Here’s part of what we found: Supervising the nearly half a million people under correctional control in Georgia costs more than $1 billion each year, while recidivism rates remain high. We are not achieving public safety returns that justify this taxpayer burden.

As a former prosecutor, I have seen the evil that drives the most violent criminals, who need to be locked up for a long time to protect law-abiding citizens. The money that puts them behind bars is well spent.  However, two-thirds of Georgia inmates are non-violent offenders, and the percentage of sentences served has more than doubled over the past 20 years. Converting them from tax burdens in prison to taxpayers in community-based corrections would help both public safety and public budgets.

By enabling Georgia’s community corrections agencies to supervise offenders effectively, we all win, with less crime, fewer victims and reduced costs of punishment. Toward this end, the council recommended expanding drug and accountability courts, expanding treatment options for offenders with substance abuse and mental health issues and implementing programs effective at reducing recidivism and encouraging offenders to comply with the conditions of their supervision.

These challenges are pressing but not unique. Several other conservative Southern states are using innovations similar to those we have recommended and are demonstrating that it is possible to be both tough on crime and smart on crime.

The General Assembly is now working on proposals to begin implementing the council’s recommendations. There are many moving parts. It will not be easy and it will not be done all in one year. While there are differences of opinion, there is a conscientious effort by legislative leaders to get it right, enacting reforms that will improve public safety, hold offenders accountable, control corrections costs and turn tax burdens into taxpayers. We can afford no less.

Kenneth L. Shigley is president of the State Bar of Georgia.

A year goes by awfully fast when you’re working two full-time jobs. With only 81 days remaining in my term as State Bar president, I look forward to the ability to just focus on my clients and my law practice.  For now, however, I find myself working late into the night to catch up on case files, juggling a very complicated schedule and returning calls from the road at odd hours and a little slowly.

I believe all the networking in the bar presidency will strengthen my work for clients after my term is finished.  While no one can or should expect the least bit of favoritism in the judicial system, the insights gained through the bar presidency will be absolutely invaluable.

Last month in New Orleans for the National Conference of Bar Presidents, I saw a street entertainer juggling machetes on Royal Street. Dropping a buck in his bucket, I told him his act was a metaphor more my life this year.

A lot of my work with the State Bar is behind the scenes, serving as the WD-40 in relations between groups in the bar and the three branches of government. My old tricks as a mediator in years past occasionally prove useful in dealing with players that have trouble talking productively with each other.

Excluding a tremendous amount of office work, phone conferences, writing articles, etc., here are a few of the things since January 1 that I can mention in public:

• Jan. 3 & 4. Attended several fundraisers for legislators.
• Jan. 5. Judicial Council meeting all afternoon.
• Jan. 6. 9 AM, video deposition of a doctor at Emory for a case on trial calendar; 11 AM, attend swearing in of my friend Judge Mike Boggs on Georgia Court of Appeals; 12 PM, meeting of Next Generation Courts Commission which I appointed; 4 PM, settled case that was on trial calendar the following Monday for exact amount that had been my target for a year.
• Jan. 7. Presided over State Bar Board of Governors meeting in morning. Attended Young Lawyers Division black tie party in evening at Capitol City Club.
• Jan. 10. Supreme Court hearing in morning, meeting with Governor’s executive counsel in afternoon.
• Jan. 11. Photo sessions with all lawyer legislators at state capitol in morning for cover of Georgia Bar Journal. Meeting in afternoon with Superior Court Clerks, Administrative Office of Courts staff and Supreme Court justice re: creation of electronic court filing system.
• Jan. 12. 11 AM, attend meeting of Georgia Dispute Resolution Commission by phone (hands free, just listening) en route to another meeting. Noon, speak at Sandy Springs Bar Association.
• Jan. 13. Tape legislative update webcast. Attend meeting of Local & Voluntary Bars Committee re: planning for Law Day and new Georgia Bar Leadership Institute.
• Jan. 17. State Bar Personnel Committee.
• Jan. 20. Breakfast meeting with other creative trial lawyers re: practice development strategy. Tape legislative update webcast at Bar Center. Drive to Macon. Speak to lunch meeting of Macon Bar Association at 1880s vintage Macon Armory. Drive to Columbia, SC.
• Jan. 21. Attend SC Bar midyear meeting, with joint appearance U.S. Supreme Court Justices Breyer and Scalia discussing their competing views on the U.S. Constitution and the role of the Supreme Court. Sat with my brother-in-law who is at a law firm in Columbia.
• Jan. 24. Conference call re: business law legislation.
• Jan. 25. Attend Chief Justice’s State of the Judiciary address at Capitol and law practice technology seminar at Bar Center.
• Jan. 27. Tape legislative update webcast.  Attend hearing of House Non-Civil Judiciary Committee re: constitutional amendment to secure funding for indigent defense. Host lunch for that committee at Commerce Club.
• Feb. 1. Joint press conference with Attorney General in rotunda of Capitol re: Georgia Legal Food Frenzy campaign supporting Georgia’s regional food banks.
• Feb. 2. Southern Conference of Bar Presidents in New Orleans. Dinner with leadership of GA, NC & SC state bars.
• Feb. 3-4. National Conference of Bar Presidents. Spoke Saturday morning on international trade in legal services. Attend ABA Fellows dinner at World War II Museum. Talk with Justice Scalia about having him speak at some future Georgia Bar meeting.
• Feb. 7. Depositions in Henry County re: a truck wreck case.
• Feb. 8. Spoke to Waycross Bar Association lunch meeting. Worked on cases while an aide drove there and back.
• Feb. 9. Lunch re: options for funding Georgia Legal Services Program for poor Georgians. Host dinner with House Judiciary Committee and staff.
• Feb. 10. Tape legislative update webcast.
• Feb. 10-11. Marriage renewal event at church with my bride of 29 years.
• Feb. 13. Boy Scout patrons breakfast at Alston & Bird, confer with several judges and leaders of other statewide organizations.
• Feb. 15. Depositions at office during day. Host dinner with Senate Judiciary Committee.
• Feb. 16. At lunch meeting of Columbus Bar Association, present 50 year awards to six guys who went to Columbus High School together and have practiced law in their hometown for 50 years. Preside over State Bar Executive Committee meeting.
• Feb. 17-18.  Southern Trial Lawyers Association. Speak Saturday morning on “15 Exceptions to Independent Contractor Defense.” Attend Mardi Gras party.
• Feb. 19. Due to airline snafu, spend day in New Orleans airport, miss connecting flight to Tampa.
• Feb. 20-21. Depositions in Tampa re: a truck wreck case.
• Feb. 22. State Bar Communications Committee meeting re: upcoming media campaign and revamping of website.
• Feb. 24. Tape legislative update webcast.
• Feb. 25. Bar & Media Conference all day Saturday at Bar Center.
• Feb. 26. Serve communion.
• Feb. 27. Speak at Beginning Lawyers Program.
• Feb. 28. Speak at lunch meeting of Morgan County Rotary Club, Madison. Speak at Justice Robert Benham Community Service Awards at Bar Center in evening.
• Feb. 29. Conference call with leaders of an existing bar section and a proposed new section, resolving selection of name for new section.
• March 2. Tape legislative update webcast. State Bar Finance Committee meeting.
• March 7. Meeting with Chief Justice and staff. Speak at lunch meeting of North Fulton Republican Women’s Club re: criminal justice reform and, at their request, Shariah law.
• March 8. Legislative committee hearing on criminal justice reform legislation. Lunch with committee chair and chair of corresponding bar committee.
• March 9-11. Joint meeting of State Bar Executive Committee and Supreme Court at St. Simons Island. Preside over Executive Committee business meeting on Friday. Co-preside with Chief Justice in joint session on Saturday morning. Host dinners on Friday and Saturday evenings.
• March 11. Drive from St. Simons Island to Charleston for reenlistment and promotion ceremony for my “glow in the dark” baby brother (32 years younger) who is an assistant instructor in U. S. Navy nuclear propulsion program. Then after dinner drive from Charleston to Atlanta, getting home at 2 AM.
• March 13. Speak at lunch meeting of Western Circuit Bar Association in Athens. Conference call re: State Bar legislation in last 10 days of legislative session.

The next 81 days will be a lot more of the same, with numerous meetings and speaking engagements around the state, several joint appearances with the Attorney General, at least one trip to Washington, etc.

Then on June 2nd in Savannah, I will hand the gavel to my able successor, Robin Clark, and begin my first real vacation in several years.

Sometime later in June, I will return refreshed and ready to focus 110% on pushing my clients’ cases.

My first job after law school was as an assistant district attorney in the small town where I had graduated from high school. I was 26 but in blue jeans rather than a suit could have passed for a decade younger. We covered four mostly rural counties. Abe Lincoln might have recognized the circuit-riding aspect of that life, but for the fact that I traveled by ’73 Dodge Dart instead of by horse.

The veteran DA was in his last term. Once when driving between county seats with the car windows wide open, he broke into an enthusiastic rendition of Johnny Paycheck’s then-new hit, “Take This Job and Shove It.” In the office where I was based, we had one desk; the ADA who got to the office first in the morning got to sit behind it. The two greenhorn ADA’s in our office worked almost autonomously, with little supervision other than the sheriff, secretaries who baked many cakes to flesh out my then-skinny frame, the clerk of superior court who saved me from disaster more than once and judges who would not let us mess up too much.

It was grand experience for a budding trial lawyer as we were constantly trying cases. The month after joining the office, I assisted in a death penalty trial for the rape and murder of a young girl. After years of appeals the defendant’s death sentence was reduced to life imprisonment and he remains in the prison system today, 34 years later.

A couple of weeks later, I tried my first solo jury trial on 30 minutes notice. Suspecting nothing, I was sitting with the DA on a Monday morning at the far end of the circuit in a courtroom full of folks who had been summoned for jury duty. He announced the first case for trial and the clerk called the first 12 jurors into the box. Without warning my boss handed me a file I had never seen on a case of robbery by sudden snatching. He said, “I’ll strike the jury, you talk with the witnesses outside and be ready to try the case in 30 minutes.” Thrown into the pool with no preparation, it was sink or swim. With no time to worry and obsess about it, I interviewed the purse snatching victim and her husband, figured out that the keys in her purse at trial matched the charred keys found in the wood stove at the defendant’s residence and eked out a conviction despite my lack of experience and preparation.

Other trials came in rapid succession and my confidence grew month by month. The fact that a prosecutor with discretion as to which cases to try, with a duty to prosecute the guilty and release the innocent, really ought to win way more than 90 percent of the time, so my win rate was not due to any genius on my part, escaped my notice. Confidence soon evolved into cockiness. I relished the opportunity to strut into a courtroom toting an unloaded machine gun. To a hammer everything is a nail, and I was a brand new hammer. I began to see almost any citizen accused of a crime as less than human, and went along with a local practice of forcing lawyers from out of town to sit and wait all week for their cases to be reached rather than placing them on call. Reflecting upon that experience decades later, I recognize that some of my decisions were based more upon ambition, testosterone and a desire to prove myself tough than upon mature judgment.

After about a year I began to see that perhaps 85 percent of the people I was prosecuting probably would not have been in trouble but for alcohol, drugs and ignorance. Another 15 percent or so were primarily mean. There was, of course, a good deal of overlap between those groups. But lacking the concept of drug and DUI courts and any coordination with addiction or mental health counseling resources, we had no solution but prosecution, incarceration and probation. If timing and politics had been just a little different, I might have become a career prosecutor. But in the 1978 election my desk mate lost a race to succeed our employer as district attorney, and we both left the office in the transition. Over the next three years I handled a lot of indigent criminal defense cases under the old system of random appointment. Eager for courtroom experience, I often went to trial and got lucky, but soon learned that dedicated work on appointed cases did not pay my bills. When an offer came to join an insurance defense firm in Atlanta—at a time when I was 30, broke and single in a small town—I moved on and never looked back.

Thirty years later, I was installed as State Bar president and Gov. Nathan Deal appointed me to the newly created Special Council on Criminal Justice Reform. At the bill signing ceremony at a drug court session in his son’s superior court courtroom in Gainesville, I was convinced that Gov. Deal is absolutely sincere about salvaging lives of non-violent offenders caught in the cycle of addiction, not merely saving money in the state budget. At the same time, the Bar role thrust me into dealing with issues regarding the statewide indigent defense system and the proposed Juvenile Code, attempting to quickly get up to speed on areas of law I had not touched in three decades.

Being thrown once again into the deep end of a pool, this time a pool of criminology research, I appointed a State Bar Committee on Criminal Justice Reform. It is chaired by Cobb Judicial Circuit District Attorney Pat Head and comprised of a stellar group of prosecutors, judges and defense lawyers with a wealth of “boots on the ground” experience.^[1] I hope that our blue ribbon Bar committee will play a significant role as the state moves forward with criminal justice reform over the next few years.

The Special Council on Criminal Justice Reform included Chief Justice Hunstein, trial judges with intense criminal law experience, Judicial Qualifications Commission member Linda Evans, a bipartisan group of dedicated legislators, one district attorney and me.^[2] It was formed to address the budget-busting fact that 1 in 70 adults in Georgia were behind bars at the end of 2007, compared to the national incarceration rate of 1 in 100 adults, and Georgia had the fourth highest incarceration rate in the country. Moreover, 1 in 13 Georgians are under some form of corrections supervision, the highest rate in the nation. Young African-American males today are more likely to go to prison than to college. People caught in a cycle of addiction, crime and unemployment are as a practical matter unavailable for productive employment and responsible parenting of children they help bring into the world. Those who complete long mandatory sentences emerge with pocket change, a bus ticket and no marketable skills other than those they learn from other inmates. The vicious cycle of recidivism continues.

The top leadership of state government laid out the following goals for the Council: (1) address the growth of the state’s prison population, contain corrections costs and increase efficiencies and effectiveness that result in better offender management; (2) improve public safety by reinvesting a portion of the savings into strategies that reduce crime and recidivism; and (3) hold offenders accountable by strengthening community-based supervision, sanctions and services.^[3]

This council worked through the summer and fall. We received technical assistance from a strong team of state public safety and corrections officials and from the Public Safety Performance Project of the Pew Center on the States (Pew) as part of the state’s selection to participate in the Justice Reinvestment Initiative of the U.S. Department of Justice. Pew has provided assistance to more than a dozen states by analyzing data to identify the drivers of prison growth and by developing research-based, fiscally sound policy options to protect public safety, hold offenders accountable and contain corrections costs. Pew’s team was assisted by the Crime and Justice Institute and Applied Research Services, Inc.

Council members divided into three working groups to develop specific recommendations in three areas: sentencing and prison admissions; prison length-of-stay and parole; and community supervision. In November, the Council released its findings and recommendations, with the underlying goal of protecting and improving public safety, in a report to the legislature and other state leadership.

Here’s part of what we found. Supervising the nearly half a million people under correctional control in Georgia costs state taxpayers more than $1 billion dollars per year. Despite this tremendous financial commitment, our recidivism rates remain stubbornly high. In short, we are not achieving public safety returns sufficient to justify this level of public expenditure. In these hard times, we must ensure that our resources are being used in the most effective way possible to keep our communities safe. Georgia’s prison population has grown 35 percent over the past decade. If we do nothing, it is projected to grow an additional 8 percent during the next five years, bringing the total to nearly 60,000 inmates and forcing the state to spend an additional $264 million on corrections. What accounts for this extraordinary growth? It cannot be chalked up simply to the violent crime rate, which has declined 20 percent over the past decade. Rather, it is the result of policy decisions that have sent more people to prison and held them there for longer.

Whatever else we do, we must remember prisons are important in the fight against crime. As a prosecutor long ago, I looked into the heart of darkness, the evil that drives the most hard-core of criminals. There is no doubt that serious violent offenders need to be locked up for a long time to protect law-abiding citizens, and the money we spend to put them behind bars is money well spent. However, approximately two-thirds of those admitted to prison in Georgia have been convicted of non-violent offenses and more than half have never before been to prison. The percentage of sentence served for offenders in prison has more than doubled over the past 20 years. Turning even a small percentage of non-violent offenders from tax burdens in prison to tax payers in community based corrections, and reinvestment of a portion of the cost of prison into programs that have proven effective elsewhere, could help both public safety and public budgets.

It is not just the prison population that has grown. Since 2000, Georgia’s felony probation population has grown 22 percent and the parole population has grown 9 percent. With an overwhelming majority of its corrections budget allocated to prisons, Georgia spends relatively few resources on community corrections, leaving agencies strained in their efforts to effectively supervise offenders in the community. For example, probation officers in Georgia have an average caseload of about 200, and the state spends just over $1 per day supervising each probationer. In addition, there are limited program options to address the significant substance abuse and mental health problems among this population and long lines for the ones that do exist. We need look no farther than our high recidivism rates to see that these inadequate community supervision options are not enough.

Ensuring that Georgia’s community corrections agencies have the resources and authority to supervise this growing number of offenders effectively is essential to public safety. If we adopt proven strategies to improve their success rate—by creating incentives for success and strengthening their supervision, sanctions and services—we all win, with less crime, fewer victims, more accountability and reduced costs of punishment. The council developed a number of recommendations to meet this objective: expanding drug, DUI, mental health and veterans accountability courts that have been proven to effectively improve public safety; expanding treatment options for those offenders with substance abuse and mental health issues; implementing programs and practices such as cognitive interventions that research has proven are effective at reducing recidivism; and introducing earned compliance credits to encourage offenders to comply with the conditions of their supervision and to participate in programs while under supervision. We agreed on reclassifying minor traffic offenses as administrative rather than criminal, and adjusting the felony threshold on property offenses to account for 30 years of inflation. These are just a few of the recommendations that will focus not just on saving money, but also on protecting families and communities.

While the council enjoyed broad consensus on a number of issues, including accountability courts, reclassification of some offenses and more community-based corrections, we were not able to make a unanimous recommendation on modifications of the mandatory minimum sentences that cumulatively drive a portion of the increase in Georgia prison populations. In the 1990s, Georgia was one of a number of states that reacted to a perception of softness among judges and parole boards by enacting a set of mandatory minimum sentences that sounded good politically but in application to individual cases could be unfair because they ignore the infinite variations of facts unique to each case.

One view is that more sentencing discretion should be restored to judges, possibly through a “safety valve” procedure requiring findings of fact and conclusions of law on a list of factors that would justify departure from prescribed sentence ranges. Such a “safety valve” might include the right of the district attorney to appeal from a sentencing decision. A variety of such procedures are employed to varying degrees in federal courts and some other states that have mandatory minimum sentencing laws. A second view is that mandatory minimums are important due to the perception that some judges would be reluctant to impose adequate sentences on dangerous offenders and that district attorneys who are familiar with the cases and the offenders should be able to control sentencing through exercise of discretion as to charging greater or lesser offenses. A third approach is to modify mandatory minimum sentences by attempting to carve out identifiable inequities without restoring broader sentencing discretion to judges, partly out of concern that too much discretion would be open to favoritism based in part upon factors of race, class, politics and other considerations.

The federal system led the way with mandatory minimum sentences for drug offenses and defendants with prior felony convictions. In October, after our council had essentially completed its work, the bipartisan United States Sentencing Commission concluded its study on the subject with recommendations that mandatory minimum penalties should “(1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment, . . . (3) be applied consistently,” and that Congress should consider whether a statutory ‘safety valve’ mechanism similar to the one available for certain drug trafficking offenders . . .  may be appropriately tailored for low-level, non-violent offenders convicted of other offenses.”^[4] It is above the pay grade of a State Bar president to say what the public policy of Georgia should be on this point.

Georgia’s public safety challenges are pressing but not unique. Across the nation, states are struggling with the frustrating reality of high prison costs and high recidivism. Several of our neighbors, including North Carolina, South Carolina, Arkansas, Kansas and Texas, are employing innovative strategies similar to those our council has considered, and demonstrating that it is possible to be both tough and smart on crime. Even very conservative states like Texas have found much success in their reform measures coordinated similar to those we studied, so we now have data from other states that suggests with fair confidence how evidence based practices are working to protect public safety and save money.

Georgia has an opportunity to join these and other states in passing legislation to improve public safety, hold offenders accountable, control corrections costs and turn tax burdens into tax payers. It is my hope that the hard work and leadership of the council, our governor and the legislature, with assistance from the State Bar, will lead to significant reforms here in Georgia. We can afford no less.

Kenneth L. Shigley is the president of the State Bar of Georgia and can be reached at ken@carllp.com.

Endnotes
^[1]The State Bar Committee on Criminal Justice Reform includes: Patrick H. Head, chairperson, district attorney, Cobb Judicial Circuit, Marietta; Wilmer “Buddy” Parker III, vice chairperson, M. J. “Buddy” Parker, Atlanta; Markette Baker, solicitor general, Troup County, LaGrange; Mary Margaret Brannen, Georgia Public Policy Foundation, Atlanta; Fredric D. Bright, district attorney, Ocmulgee Circuit, Milledgeville; David Lee Cannon Jr., solicitor general, Cherokee County, Canton; Robert J. Castellani, senior superior court judge, DeKalb County; Brenda S. Hill Cole, judge, State Court of Fulton County, Atlanta; J. Michael Cranford, past chair, Criminal Law Section and past president, Georgia Association of Criminal Defense Lawyers, Macon; Michael Joseph Cuccaro, Administrative Office of the Courts, Atlanta; Gregory W. Edwards, district attorney, Dougherty Judicial Circuit, Albany; Jon Vincent Forehand, Allen & Forehand, Moultrie; Brian Keith Fortner, solicitor general, Douglas County, Douglasville; William A. Foster III, senior superior court judge, Paulding Judicial Circuit, Dallas; Jason William Hammer, Carlock, Copeland & Stair, LLP, Atlanta; C. LaTain Kell, superior court judge, Cobb Judicial Circuit, Marietta; Seth D. Kirschenbaum, Davis, Zipperman, Kirschenbaum & Lotito, Atlanta; Christine Anne Koehler, Koehler & Riddick, LLC, Lawrenceville; John Richard Martin, Martin Bros., PC, Atlanta; Steven J. Messinger, chief assistant district attorney, Paulding Judicial Circuit, Dallas; Bonnie Chessher Oliver, superior court judge, Northeastern Judicial Circuit, Gainesville; Claudia Susan Saari, chief public defender, Stone Mountain Judicial Circuit, Decatur; Dennis C. Sanders, district attorney, Toombs Judicial Circuit, Thomson; Robert Frank Schnatmeier Jr., Gentry Smith Dettmering Morgan & Schnatmeier LLP, Marietta; Carmen D. Smith, solicitor general, Fulton County, Atlanta; Hon. D. Jay Stewart, superior court judge, Atlantic Judicial Circuit, Claxton; Frank C. Winn, Winn & Winn, Douglasville; Rebecca Ashley Wright, district attorney, Augusta Judicial Circuit, Augusta. Advisors: Ronald L. Carlson, University of Georgia School of Law; Sen. Jason Carter, District 42, Decatur; Russell Dean Covey, Georgia State University School of Law; Sen. William S. Cowsert, District 46, Athens; Stan Gunter, Prosecuting Attorneys Council; Sen. William Hamrick III, District 30, Carrollton; Sen. Josh McKoon, District 29, Columbus; Rep. Wendell K. Willard, District 49, Sandy Springs; Karen Lisa Worthington, Karen Worthington Consulting.

^[2]Gubernatorial Appointees: Hon. Todd Markle (chair and designee of the governor) superior court judge, Atlanta Judicial Circuit; Linda Evans, member, Judicial Qualifications Commission; David McDade, district attorney, Douglas County ; Ken Shigley, president, State Bar of Georgia; Senate Appointees: Sen. John Crosby, District 13, Tifton; Sen. Bill Hamrick, District 30, Carrollton; Sen. Ronald Ramsey, District 43, Decatur; House Appointees: Rep. Mary Margaret Oliver, District 83, Decatur; Rep. Jay Powell, District 171, Camilla; Rep. Willie Talton, District 145, Warner Robins; Judicial Branch Appointees: Carol W. Hunstein, chief justice, Supreme Court of Georgia; Michael P. Boggs, superior court judge, Waycross Judicial Circuit; Ural Glanville, superior court judge, Atlanta Judicial Circuit.

^[3]Letter to the Department of Justice and the Pew Center on the States dated May 27, 2011, signed by Gov. Nathan Deal, Chief Justice Carol W. Hunstein, Lt. Gov. Casey Cagle and Speaker David Ralston.

^[4]United States Sentencing Commission, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (October 2011), available at http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Mandatory_Minimum_Penalties/20111031_RtC_Mandatory_Minimum.cfm (last visited Nov. 14, 2011).