I have tried serious injury cases for over forty years. Years ago, I saw terribly low verdicts for catastrophic harm. More recently, we have seen eight-figure verdicts that would have shocked judges when I was a puppy lawyer. What changed?

Insurance defense folks in their seminars have used phrases like “nuclear verdicts.” That makes it sound reckless or irrational. But in my experience, most juries take their job seriously. They discuss seriously the facts of the case and legal principles on which the judge instructs them.

They also bring into the jury room their experience in the world in which we live.

Here are ten reasons verdicts have grown.

1. Big Numbers Don’t Shock People Like They Used To

Inflation has reshaped expectations. The U.S. Bureau of Labor Statistics tracks the steady rise in consumer prices through the Consumer Price Index. Citizens who wind up on juries see that in real time every time they buy groceries, gas, or homes.

They hear news reports of tycoons and even some politicians reaping billions on wild-sounding deals in technology, crytocurrency, etc. The “b word” (billion) seems little more fanciful than the “m word” (million) did 50 years ago.

When an economist projects $6 or $8 million over a lifetime of care, it no longer sounds imaginary. It sounds expensive but credible.

2. Medicine Keeps People Alive But At a Cost

When I was growing up, the ambulance arriving at a wreck scene was often operated by the funeral home.  The after-school and weekend job of one of my high school classmates was to drive the “meat wagon.” There was no first responder training and no paramedic on the scene to stabilize a catastrophically injured person. Too often, they just went straight to the funeral home. 

Many catastrophic injuries were fatal. Today, emergency medicine and advanced trauma care and rehabilitation save lives. But survival comes at a price. Often, it requires decades of structured support. Life care planners build detailed projections based on medical research and standards published through sources like the National Institutes of Health.

Jurors understand that survival without resources can mean suffering. They award money to fund stability.

3. Corporate Trust Has Eroded

Public trust in major institutions has declined over the years since Watergate. Surveys from the Pew Research Center  egularly document this trend.

When  internal documents and emails show ignored safety complaints or cost-cutting decisions, jurors can easily connect it to a broader narrative about profit over people. That matters in the jury room with rules-oriented jurors who distrust institutions.

In planning mock jury focus groups, we have often deliberately limited the group to the most politically and socially conservative people. They have surprised us by coming up with numbers much higher than a mock jury that represented a broader cross-section of the population.

4. Safety Rules Are Clear and Public

In trucking, aviation, medicine, and manufacturing, safety standards are spelled out in black and white. For example, commercial motor carriers operate under federal rules issued by the Federal Motor Carrier Safety Administration, which are simply explained in the Commercial Drivers License Manual. Commercial truck drivers and safety managers have no credible way to deny those are the industry standards they are supposed to follow.

Clear rules make liability feel concrete. When a company violates a clear safety rule, jurors see it not as just an accident but a deliberate and unsafe choice.

5. Social Media Changed the Background Noise

Years ago, corporate misconduct stayed local. Today, bad news travels fast. Anything that makes news anywhere seems local and immediate. Jurors have watched stories about defective products, data breaches, and regulatory failures. That background shapes how they interpret evidence. Jurors do not enter the courtroom empty-headed.

6. Trial Lawyers Tell the Story Differently Now

Modern trial strategy focuses on safety and preventability. Lawyers talk not about sympathy but about common sense safety  rules and how small decisions cascade into harm.

7. Anchoring Influences Damage Awards

When a lawyer suggests a specific figure for pain and suffering, that number becomes a reference point. Jurors may reduce it, but they rarely ignore it. Anchoring is not just  manipulation. It is human cognition at work. Psychologists have long studied how framing affects judgment. The concept of cognitive “anchoring” is well established, including in research summarized by the American Psychological Association.

The Georgia legislature in its latest “tort reform” tried to stop anchoring by enacting OCGA § 9-10-184, which provides, “ In the trial of a civil action for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury; provided, however, that any such argument shall conform to the evidence or reasonable deductions from the evidence in the case.”

In legislative debate, politicians talked about stopping lawyers from analogizing to the price of paintings and race horses. However, an experienced trial lawyer has no need to talk about such crudely irrelevant distractions. A good advocate can easily suggest to jurors a way to calculate value based on the evidence and reasonable deductions. Nearly two decades ago, I gave jurors a methodology tied to the evidence and linked to reality in their rural county through which they calculated a verdict a million dollars more than I asked for.

8. Younger Jurors View Institutions Differently

Now on the senior end of the generation gap, I have seen several times how generational shifts are real. Many younger jurors grew up during the financial crisis, corporate scandals, and rising inequality. They carry student debt. They have seen layoffs. They question concentrated power more readily.

This does not mean they are anti-business. It means they may weigh accountability differently than their parents or grandparents.

9. Transparency About Corporate Wealth

Public companies disclose executive compensation and financial performance through filings with the U.S. Securities and Exchange Commission. We all see news reports about individuals making billions on crypto or a tech tycoon closing in on a trillion dollars net worth, it registers. Even billboards for the lottery touting jackpots over a billion dollars feeds the idea that it could happen to them. At some level, all that registers. When jurors see astronomical CEO bonuses alongside safety violations, they calibrate verdicts accordingly.

A verdict that once seemed massive may now feel proportional.

10. Preventable Harm Sparks Moral Reaction

The most significant driver of large verdicts is not sympathy but preventability.

An impaired or fatigued trucker. A manufacturer that ignored a recall warning. A hospital that brushed aside red flags. When jurors conclude, “This did not have to happen,” damages climb. Moral judgment is powerful. It always has been but now it carries a bigger price tag.

Large verdicts do not come from thin air. They usually arise from clear liability and serious, permanent harm. Venue still matters. Facts matter more. I have seen conservative rural counties return modest verdicts in serious cases and urban juries surprise plaintiffs with restraint. But I have also seen the opposite, surprisingly adequate verdicts in the most conservative venues.

Money is the only remedy our civil system offers. Jurors know that. They cannot undo a spinal cord injury or restore a dead child. They can only assign responsibility in dollars.

After decades in the courtroom, I recognize that modern verdicts reflect modern expectations about safety, accountability, and dignity. When people on a jury believe a company or individual chose risk over safety, they are not afraid to respond firmly.

Ken Shigley, senior counsel at Johnson & Ward, Atlanta’s oldest personal injury specialty law firm, is a former president of the State Bar of Georgia. He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy: Truck Accident Law, Civil Trial Practice, and Civil Pretrial Practice. He was the lead author of eleven editions of Georgia Law of Torts: Trial Preparation and Practice, and received the Traditions of Excellence Award from the State Bar of Georgia General Practice and Trial Section. B.A., Furman University; J.D., Emory University Law School; Certificates in mediation and negotiation, Harvard Law School. He began his career as an Assistant District Attorney, then worked a decade in an insurance defense law firm before entering plaintiffs’ practice.

Transformation of  lives of clients and their families is part of my calling in law practice. While money is the quantitative measure of success, whenever possible I also try to guide outcomes in a way that will redirect the trajectory of life for clients and their families. A recent case is a good example.

Recently we handled a case for a 30-year-old single mom from a less than privileged background. She had struggled to put herself through a Certified Nursing Assistant (CNA) program. When injured, she was working as a CNA and living paycheck-to-paycheck with her daughter in a modest apartment. Then,  in a catastrophic crash she lost a leg at the knee. After three years of litigation, our team recovered roughly $6.5 million for her.

Many lawyers would just cut a check for the net proceeds after deduction of fees, expenses and liens, and say, “good luck.”  Too often we hear stories of people who come into a large amount of money and in a couple of years are broke. That is not our approach.

When people come into an unaccustomed amount of money, friends, relatives and new lovers often appear on the scene with “great ideas” for use of the money. Without careful management, the funds that were intended to take care of a victim for life soon evaporate.

This young woman’s settlement is illustrative of what we try to do when possible. The bulk of her money was placed in a trust to protect her from  creditors and predators.

A portion of the funds were used to buy this “forever home” which will be held in her trust. It is a lovely house in a safe neighborhood, built in 1937 but completely updated. Renovations include an open floor plan, handicapped accessibility, and new plumbing, electric, HVAC, roof, siding, windows and floors. It is a good place to raise her child.

She will also use a portion of her recovery to return to school with a goal of becoming a Registered Nurse (R.N.). I expect that with a great heart and her life experience with catastrophic injury, she will be a blessing in the lives of many of her future patients.

Her increased financial capacity will also, I expect, improve the life prospects of her daughter.

I hope that she finds love again. If so, the trust will be a buffer against the temptation to let a future love to mismanage and erode her funds.

We have had many cases over the years in which lives were transformed for the better. Examples include:

• A  bright 13-year-old girl had a case for the death of her father. She was about to enter eighth grade at an inner city school. With her mother, she chose a structured settlement that would fund her education first at an elite prep school, and then through college and graduate school. After completing her education she would also get a lump sum sufficient for a down payment on her own home. That set a new trajectory at a critical point in her life.
• When the oldest child in a family with several children was killed in a tractor trailer crash, we recovered for the parents the funds to pay for college of the younger children.
• When another single mom who worked all day at a keyboard had an injury that made that impracticable, we got enough money to fund the business she had always dreamed of starting.

We don’t always get this satisfying an outcome. Some financially unsophisticated clients resist efforts to help in ways other than purely monetary. Some of them run through their money and are broke again within a few years. If that happens, at least we warned them in writing about that potential and tried to counsel them.

There are other clients who clearly have enough experience and sophistication that I don’t worry about their ability to handle money.  Examples include:

• A small business owner who has demonstrated ability to manage his business and finances. He used his injury settlement to expand his going business.
• A couple who were already working with a financial adviser. They used their confidential settlement to advance their retirement by a couple of years and become more active in charitable work in their community.
• An 18-year-old who took the initiative before settlement of his case to set up a meeting with a wealth management officer at a financial institution. He authorized the broker to send me copies of monthly statements until he finished college, then began his  own career in the financial services industry.

This is not just a job. It is a calling to transform lives.

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

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

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

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

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

Effective January 2, 2020, he moved his existing law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862. 

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

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

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

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

• 

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

  

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

• 

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

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

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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.

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.

The “laying on of hands” can resonate powerfully. In my background, it has spiritual and theological implications as a ritual of blessing or of healing. Can this and other senses beyond sight and hearing also be part of legitimate trial advocacy in conveying truth to jurors?

The Georgia Court of Appeals recently said yes in the context of a case where two experts disagreed on whether there was a difference in temperature of the hands of a plaintiff who had a diagnosis of complex regional pain syndrome (also known as reflex sympathetic dystrophy), due to medical malpractice. (Kudos to Lloyd Bell who ably tried the case and called me to brainstorm about this while the appeal was pending.)

In Piedmont Newnan Hosp., Inc. v. Barbour, — S.E.2d —-, 2015 WL 4316873 (Ga.App.,2015), decided on July 16, 2015, the trial judge allowed jurors to feel the hands of the plaintiff to decide whether there was a difference in temperature. The plaintiff’s expert had testified that such a difference in temperature between the hands was a diagnostic criteria for CRPS. The defense expert said there was no such difference in temperature. The judge let jurors hold the hands and decide for themselves whether there was a temperature differential. The result was a substantial verdict for the plaintiff.

On appeal, the court rejected defense arguments that the trial judge abused his discretion by allowing jurors to make a medical diagnosis, that it made them witnesses who could not be cross-examined, that the exercise had no probative value, and that such a practice has been rejected by other courts around the country.

Federal Rule of Evidence 401 (O.C.G.A. § 24–4–401) states that relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Temperature of the hands was indisputably relevant to deciding whether the plaintiff had CRPS.

The court discussed cases from other states in which jurors were allowed to use touch, taste and smell to determine facts. This included cases where they were allowed to feel a lump in a plaintiff’s arm, fractured skull, arms and legs to determine temperature differentials, and other body parts. The court also cited favorably two old Georgia moonshine cases, Union v. State, 7 Ga.App. 27, 27(4), 66 S.E. 24 (1909) (no error if jurors tasted liquid from jug admitted into evidence in illegal whiskey trial); Morse v. State, 10 Ga.App. 61, 63(3), 72 S.E. 534 (1911) (jurors may utilize all of their senses, including taste and smell, in determining whether liquid was an intoxicating liquor).

What are the implications of this ruling for trial advocacy? How else can lawyers find ways to allow jurors to use all their senses in the search for truth? And how much would be too much, overreaching to the point of turning off judges and jurors?

Consider all the senses and think outside the box. Traditionally, we think of “five senses” — sight, hearing, touch, smell, and taste – a short list credited to Aristotle. But researchers now have expanded the list to 21 senses:

• Sight:  This really includes is two types of seeing based on two distinct types of receptors present, one for color (cones) and one for brightness (rods).
• Taste:  Again, this may be broken down into five types of taste based on different taste receptors — sweet, salty, sour, bitter, and umami. The taste sense, unlike sight, is a sense based off of a chemical reaction. “Umani” is Japanese for pleasant savory taste, when receptors detect the amino acid glutamate, generally found in meat and some artificial flavoring.
• Smell:  Like taste, the sense of smell involves olfactory sensors that work off of a chemical reaction.  Smell combines with taste to produce flavors. Olfactory memory can be powerful and closely linked to deep emotional response. Think of how often your own memories are linked to smells – cookies baking in your grandmother’s kitchen, the smells of nature in a favorite place, etc.
• Touch:  This involves four distinct types of touch sensors perceiving pressure, temperature, pain, and itching.
• Thermoception:  Apart from sense of temperature on touch, this is the ability to sense heat and cold in the environment and internally in the body.  It involves hot and cold receptors and a distinct brain function.
• Sound:  People with normal hearing detect vibrations along some medium, such as air or water that is in contact with ear drums.
• Proprioception:  This sense gives you the ability to tell where your body parts are, relative to other body parts.
• Tension Sensors:  Receptors in muscles allow the brain the ability to monitor muscle tension.
• Nociception (pain):  In the past, pain was though to be just the result of overloading other senses, such as “touch.” But now it is considered its own unique sensory system.  There are three distinct types of pain receptors: cutaneous (skin), somatic (bones and joints), and visceral (body organs).
• Equilibrioception (balance):   The sense that allows you to keep your balance and sense body movement in terms of acceleration and directional changes.  This sense also allows for perceiving gravity.  The sensory system for this is found in your inner ears and is called the vestibular labyrinthine system.  But some people who have lost both vestibular nerves, and thus do not have this sense at all, are able to compensate admirably by use of visual cues. For example, my daughter lost both auditory and vestibular nerves in the removal of neurofibromatosis tumors but has been able to complete triathlons. How do you swim over a mile, bike over 50 miles and then run a half marathon, with no sense of balance? Doctors at Harvard included her in a study to figure it out.
• Stretch Receptors:  These are found in such places as the lungs, bladder, stomach, and the gastrointestinal tract.  A type of stretch receptor, that senses dilation of blood vessels, is also often involved in headaches.
• Chemoreceptors:  An area of the medulla in the brain detects blood born hormones and drugs and controls the vomiting reflex.
• Thirst:  This monitors hydration and tells us when we need something to drink.
• Hunger:  We are all quite familiar with this one.
• Magnetoception:  This is the ability to detect magnetic fields, which is principally useful in providing a sense of direction when detecting the Earth’s magnetic field.  Humans don’t have as much of this as birds that migrate following magnetic fields. But humans do have some sense of magnetoception, though it is poorly understood.
• Time:  Human perception of time varies widely, and may be more accurate when people are younger rather than older. People with brain damage often lose the ability to keep track of time. Others seem to have a biological alarm clock and habitually wake up ten minutes before the time they set on an electronic or mechanical alarm clock. Researchers have determined that the mechanism we use for sensing time involves the cerebral cortex, cerebellum, and basal ganglia.

I am not smart enough to immediately think of appropriate ways to employ all these senses of jurors in trial advocacy. However, here are a few examples both commonplace and slightly outside of customary usage. Any lawyer tempted to try techniques that are not customary should seek the judge’s permission in advance and have a trial memorandum to show the judge that it really is OK to allow a slightly unconventional demonstrative aid.

• Smell. Olfactory memory can be emotionally powerful and a tremendous tool in persuasion.
  • Alcohol. If alcohol is at issue, one could use containers of the type of alcohol involved as demonstrative aids during closing argument, open and pour them while talking, thus filling the courtroom with the smell of beer or whiskey. I tried this in a mock trial at the Ultimate Trial Advocacy Course at Harvard years ago, but have never had the right occasion to try it in court.
  • Drugs. I started out as a prosecutor. It was not unusual to have officers testify about the smell of drug contraband. One could also give jurors the opportunity to smell a bag of marijuana, for example, as jurors were allowed to taste moonshine in old Georgia cases.
  • Charred materials. We sometimes have cases in which vehicles burned and the contents have smoky, charred aroma. A customary response is to just get photos of those things and keep the nasty smells out of our files and offices. But introduction into evidence of smelly remains from fires could powerfully reinforce the reality of the fire.
  • Chemicals. Where appropriate and with suitable precautions, jurors could be allowed to smell brake fluid, gasoline and other chemical that are involved in a case.
• Touch. As in cases cited by the Court of Appeals in Barbour, jurors may be invited to lay hands on the injured person to confirm aspects of any injury tactilely as well as visually. A possible side effect may be in forming a connection between jurors and the person they actually touch.
  • Rough scars. Discoloration from a laceration or burn may fade, but the skin remains uneven, bumpy or of an unnatural texture.
  • Unevenly healed fractures. Even when bones knit together, there may be a palpable lumpiness at the fracture site. Jurors could feel that.
  • Medical implants. If an injured person has some sort of medical implant palpable from the outside – plates and screws in an arm or leg, screws securing a rod in a femur, feeding tube, port for chemo, etc. – jurors might be invited to feel from the outside what is visible only on radiology images.

Perhaps lawyers more creative than I will think of ways to use others of those many senses for communicating the truth to jurors at trial. In doing so, however, lawyers should take care not to just develop a “bag of tricks” but to employ all the senses as a means of communicating truth.

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

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.

The idea is to prevent the jury from mixing sympathy for the plaintiff with determination of fault.

Over the years I have had mixed results in dealing with that issue, with both sides arguing on the basis of court decisions in other jurisdictions, as there has been no definitive Georgia law on point.

Now the Supreme Court of Georgia, in an opinion written by Justice David Nahmias, has resolved the issue. The case involved a child with spastic quadriplegia due to cerebral palsy, allegedly due to obstetrical malpractice at her birth. Kesterson v. Jarrett, — S.E.2d —-, 2012 WL 2203450, Ga., June 18, 2012 (NO. S11G0590).

It is a long and scholarly opinion to which I cannot easily do justice in a brief blog post, but here are a couple of brief excerpts:

Under the longstanding law of Georgia, the parts to a lawsuit have a fundamental right to be present in court during the trial of their case. The issue presented in this appeal is whether a party may be denied that right and excluded from the courtroom because her physical and mental condition may evoke undue sympathy from the jury and thereby improperly prejudice the other party. This appears to be a question of first impression for Georgia’s appellate courts, likely because exclusion of a party from trial for this reason is such an exceptional event in this State. . .

We conclude . . . that a party may not be excluded from her own trial simply because her physical and mental condition may evoke sympathy, even under these circumstances. Instead, trial courts can and should address the risk of undue sympathy using jury instructions and other common and time-tested means of ensuring that both parties receive a fair trial, without infringing on the parties’ right to be present. Accordingly, we reverse. …

Now that the right is established to have the mentally incompetent plaintiff in the courtroom at all phases of trial in Georgia state courts, the next question is what impact that will have on trial tactics of both plaintiff and defense lawyers.

In medical malpractice trials, where juror sympathy often aligns with the defendant doctors who win about 80% of the time, it might not make much difference. In the Kesterson case, the child was present at the beginning of jury selection and once during medical testimony in the liability phase. I can only speculate on whether the exclusion of the child for most of the liability phase of the bifurcated trial really made a difference in the outcome.

While the child’s appearances were brief, some plaintiffs’ trial consultants counsel limiting exposure of such a plaintiff to brief times in order to maintain the shock value and prevent jurors from becoming hardened to the plaintiff’s condition.

The “rules of the road” strategy widely promoted by trial consultants today requires focus on the safety rules and their violation by the defendant prior to talking much about damages. This is the reverse of the practice a generation ago in which plaintiff lawyers would start out with talk about how badly the plaintiff was injured. Only after establishing the importance of all the safety rules the defendant violated, according to this theory, does the plaintiff’s lawyer have psychological permission from the jury to go into discussion of damages.

The defense lawyer who moves for bifurcation of trial under these circumstances may lead even the less sophisticated plaintiff’s lawyer into inadvertently adopting the “rules of the road” strategy rather than blatantly pandering to sympathy from the beginning.

Perhaps some defense lawyers, knowing that they cannot exclude the catastrophically brain damaged plaintiff from the courtroom during the liability phase, will reconsider the strategy of moving to bifurcate liability and damage phases. In so doing, they might lure plaintiff lawyers into  alienating jurors though overt appeals to sympathy by keeping the plaintiff in the courtroom for the entire trial. Jurors are pretty smart cookies who can easily resent such pandering.

And perhaps some plaintiffs’ lawyers will voluntarily choose to bring in the catastrophically injured plaintiff only briefly in the early stages of trial, preserving the shock value for perhaps the explanation of a life care plan in support of a large damages number near the end of the trial.

Even though we can keep in the courtroom for the entire trial a spastic quadriplegic with no mental capacity to assist the lawyer, that does not mean we should.

Now the Georgia Court of Appeals has clarified that a statute setting an 8 year time limit to sue after completion of construction to sue applies to road projects just as to construction of a house, deck or whatever.

In Feldman v. Arcadis US Inc., A12A0553, 12 FCDR 1822 (06/08/12), the Court of Appeals held that in a suit for negligent planning and design of a section of roadway, the 8 year statute of repose in OCGA 9-3-51 barred the suit because the project was an “improvement to property” under the plain meaning of the statute.

OCGA § 9-3-51 (a) states that

[n]o action to recover damages: (1) For any deficiency in the survey or plat,
planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property; (2) For injury to property, real or personal, arising out of any such deficiency; or (3) For injury to the person or for wrongful death arising out of any such deficiency shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.

Georgia courts apply  the following factors when analyzing what constitutes an “improvement to real property”:

(1) [whether] the improvement [is] permanent in nature; (2) [whether] it add[s] to the value of the realty[] for the purposes for which it was intended to be used; [and] (3) [whether] the contracting parties [intended] that the improvement in question be an improvement to real property[,] or [whether] they intend[ed] for it to remain personalty.

The statute of repose serves to limit the time for the discovery of a design or construction flaw to a reasonable number of years because such flaws would be discovered through the normal use of an improvement if it is indeed an improvement to real property rather than a fixture to the property. A roadway is just such an improvement.

Thus, the trial judge (Hon. Diane Bessen, State Court of Fulton County) granted summary judgment, and the Court of Appeals (Hon. Sara Doyle) affirmed.

When I have handled such cases, the usual drill has been to gather evidence of prior criminal assaults on the premises to prove that the owner was on notice of the need for increased security, and then get an expert to testify about the types of security measures that should have been employed but were not.

Often when we have investigated potential cases of negligent security we have found a shocking number of assaults and shootings in parking lots and common areas at apartment complexes, night clubs, stores and shopping centers. That makes it relatively easy for a security expert to testify about both active and passive security measures that could have helped prevent the incident in question.

Last week, the Georgia Court of Appeals has provided a reminder that one must actually do the hard work of proving what the business actually did something wrong in its security measures.

In Yearwood v. Club Miami Inc., A12A0550, 12 FCDR 1820 (06/08/12), the Georgia Court of Appeals (Hon. Anne Barnes) affirmed a trial judge’s (Hon. Dax Lopez, State Court of DeKalb County) grant of directed verdict for the defendant night club in injury suit arising after the plaintiff was shot in defendant’s club. The plaintiff presented no evidence showing that defendant’s voluntary security measures were inadequate or insufficient or that defendant’s measures made security situation worse.

Surprisingly, the plaintiff presented no evidence of prior criminal acts on the premises and no testimony that the security checks and search for guns at the door was actually negligent rather than merely unsuccessful. The plaintiff’s case was essentially one assuming strict liability because the assailant got a gun past the club’s security measures.

The lesson in this case is that lawyers who represent people injured in criminal incidents on business premises must investigate prior similar criminal acts on the premises, conduct detailed discovery about the security measures that were or were not used, and introduce expert testimony from a credible security expert to present to the court exactly why the defendant’s conduct fell below the standard of care for premises security under the circumstances.

If all that can be done convincingly, and if there are insurance coverage or assets available, then there can be a good chance of recovering compensation for the victim. However, if such a case is not presented with adequate evidence and skill, it will fail.

However, a case decided by the Georgia Court of Appeals on May 26, 2012 reveals a trap door for the unwary in the exercise of this right. Cox v. Progressive Bayside Ins. Co., __ Ga. App. __, __ S.E.2d __, 2012 WL 1860704 (Ga.App., 2012).

In that case, Cox filed suit against Dobson within the two year limitation period for her injuries. Dobson was an uninsured motorist. Cox successfully had Dobson personally served with the suit papers.

After expiration of the limitation period, Cox dismissed without prejudice and refiled within six months pursuant to OCGA § 9–2–61.  However, because Dobson had diedm Cox did not get personal service on him.  Eight days after the renewal action was filed, the sheriff reported that Dobson was dead.

If Cox had promptly asked the probate court to appoint an adminstrator for the estate of Dobson, filed a motion to substitute the administrator as defendant, and served the administrator with the lawsuit, Cox would have been OK>

Progressive, as uninsured motorist (UM) insurance carrier filed a suggestion of death. Cox failed to file a motion to substitute an executor or adminstrator for Dobson. Eleven months later, the court granted a motion to dismiss.

The Court of Appeals, in a decision written by Presiding Judge Mikell, held:

Cox did not meet the procedural requirements of perfecting service against Dodson because he was deceased at the time she filed the renewal suit. In Georgia, a deceased person cannot be a party to legal proceedings and any suit brought against a deceased defendant is a nullity.^FN5 The fact that Cox may have perfected service against Dodson in the prior suit does not affect the fact that she has not perfected service against him in the renewal suit and accordingly, no action was ever commenced. . . . Because the renewed complaint was filed against a deceased person and Cox never attempted to substitute defendants prior to the trial court’s hearing on the motion to dismiss, we find that the trial court did not err in denying Cox’s request to substitute parties.

In a typical uninsured motorist case where the tortfeasor has died, estate administration is likely to be as absent as liability insurance. To enforce rights under uninsured motorist insurance coverage, it may be necessary to have a county administrator appointed as administrator of the decedent’s estate in probate court. The administrator can be served or acknowledge service in the injury suit. The plaintiff’s attorney must also separately serve the auto insurance company under the UM coverage.

If the deceased tortfeasor was from outside Georgia, questions might arise about jurisdiction of a Georgia probate court to appoint an administrator for this purpose. However, in Tweed v. Houghton, 103 Ga.App. 57, 118 S.E.2d 496 (1961), the court held that potential liability insurance coverage could be an asset of the estate warranting appointment of an administrator in a county where there would have been venue against the decedent nonresident motorist if he had lived. If, for example, there had been coverage on the decedent’s vehicle which was either inadequate or denied due to nonpayment, that can provide the basis to have an administrator of the estate appointed and served. Then, when the UM carrier is served, it cannot defend on the ground that the tortfeasor’s estate was not served.

In serving any lawsuit, it is important to read the return of service papers that come back from the sheriff. If there is a note that the defendant could not be served, it is vitally important to follow up. If the defendant has died, it is important to promptly investigate and if necessary get the county administrator appointed so that there is someone who can be served with process on behalf of the estate.

 —————————————————
Ken Shigley is Immediate Past President of the State Bar of Georgia and currently chair of the board of the Institute for Continuing Legal Education in Georgia, so he is well respected among judges, lawyers and court officials across Georgia. He has successfully handled cases in many of Georgia’s 159 counties from the mountains to the sea. Mr. Shigley has dual board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification. He has spoken on  continuing legal education programs from coast to coast and is now on the boards of the American Association for Justice Motor Vehicle & Premises Liability Section and Trucking Litigation Group.

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.

In the case of RASNICK v. KRISHNA HOSPITALITY, INC., a 77 year old man from Texas was staying at a motel in Jesup while on a work assignment in Georgia, and spoke with his wife several times per day. When his wife was unable to contact him in several attempts one evening, she repeatedly asked the motel staff to check on him because she was concerned about his health. The motel staff repeatedly refused.

The next morning a motel housekeeper found him on the floor of his room, unresponsive. An ambulance took him to a hospital where he soon expired due to heart problems. A cardiologist testified that would have survived had he received medical treatment the previous evening when his wife was begging the motel management to check on him.

While an innkeeper may have a legal duty to provide reasonable assistance to guest whose illness is observed, the Court held that it has no duty to investigate the possibility of an illness that is not observed.

To require that an innkeeper monitor in any manner the possible health problems of a guest, which are not caused by or are unrelated to the stay at the facility, is not only unwarranted as a matter of law but unworkable as a matter of fact and practicality. Pretermitting significant policy considerations including the potential fiscal impact on the hotel/motel industry, threshold issues would include questions involving the scope of the duty and possible triggering events. What type of inquiry would or should cause the innkeeper to inquire into the guest’s state of health and from whom? Would the triggering inquiry have to be from a family member or would a friend or colleague or anyone with ostensible concern about the guest’s health situation suffice? Such questions become crucial because issues implicating the guest’s privacy are extant. . . .

While issues of morality and humanity are certainly raised by the circumstances of this case, a moral or humane obligation does not compel the existence of a legal duty, the breach of which portends liability. . . . To conclude otherwise in this case would be an epitomization of the adage “bad facts make bad law.” In light of a legislative reluctance to do so and in recognition of clear considerations of policy and pragmatism, we decline to judicially engraft into the caselaw of this State, the additional duty upon innkeepers to investigate or check on their guests to determine if they are in medical need, as urged by Rasnick. This holding is sufficient to decide this case, and thus, we need not determine now whether any duty to render or summon medical aid as may be set forth in Section 314 (A) (2) should be adopted in Georgia.

The Georgia dram shop statute, OCGA § 51-1-40, provides:

(a) The General Assembly finds and declares that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.
(b) A person who sells, furnishes, or serves alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury, death, or damage caused by or resulting from the intoxication of such person, including injury or death to other persons; provided, however, a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle, or who knowingly sells,
furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such minor or person when the sale, furnishing, or serving is the proximate cause of such injury or damage.

The Georgia Court of Appeals had held  the dram shop act does not apply under any circumstances to the sale of closed or packaged alcoholic beverages not intended for consumption on the premises.

However, the Supreme Court reversed, holding that

“because statute uses the terms ‘sells, furnishes, or serves’ alcohol in the disjunctive, it is clear that it was intended to encompass the sale of an alcoholic beverage at places other than the proverbial dram shop. . . . We find [the] statutory requirements to be straightforward and under the plain language of the statute are equally applicable to convenience stores and traditional dram shops.”

We are currently working on a wrongful death case that is likely to involve the dram shop statute. While it involves a disreputable night club rather than a relatively respectable convenience store, the holding in this case may serve to strengthen dram shop cases generally.

Today’s news includes a report that the State Court of Douglas County awarded $700,000 damages against the owner of a pit bull that mauled an 8 year old neighbor child. Before that incident, the owner had been cited at least 10 times over a four-month period and seriously attacked another neighbor in her driveway.

The child has had several surgeries, has an eyelid droop, endures frequent teasing in elementary school about facial scars, and is understandably afraid of dogs.

Judge W. O’Neal Dettmering Jr., awarded more than what the child’s parents initially sought, which was around $634,000. He awarded the maximum amount allowed for punitive damages $250,000. Congratulations to the family’s attorney, Mike Miller.

Having known Judge Dettmering since we were young lawyers in Douglasville, I am not surprised that in such a case he would follow the admonition of Ecclesiastes 9:10: “Whatever your hand finds to do, do it with all your might…”

Attorneys handling facial scarring cases may consider the potential for psychological testimony about the impact of facial asymmetry, including effects on self-concept, career prospects, mate selection, etc. In working on a case of a dog bite to a child’s face a few years ago, we found quite a body of psychological literature on point.

Of course, most treating physicians are caring, compassionate and helpful to their patients, just as most lawyers are conscientious, ethical and hard working. It is a small minority within both professions that create many problems for the ethical majority.

An article in today’s Fulton County Daily Report highlights both categories of problems with medical testimony. It also underscores the deficiencies of the Georgia medical narrative statute and the need for effective cross examination of doctors who consistently testify for insurance companies to deny all injury claims.

Georgia law includes a provision for use in evidence of medical narrative reports in lieu of physicians’ testimony. The statute and case law require that narratives be written in plain English intelligible to the jury and not filled with technical jargon. It is extremely difficult to get doctors to dictate a medical narrative in plain English.

The article focuses on a narrative report signed by a plaintiff’s treating physician.  At trial it came to light that the plaintiff’s attorney had drafted the report which the doctor signed. That apparently impacted the jury’s view of the credibility of the report.

To get a treating physician to testify live in court is so difficult and expensive that it almost never happens in personal injury cases.  The cost of taking a doctor’s deposition on video to use at trial is often $2,000 or more.  And the prices charged by medical personnel keeps going up. Doctors have charged us $1,500 just to dictate a one or two page letter for use as a narrative report. We were recently informed that it would cost $1,500 per fifteen minutes just to interview a physician’s assistant.  We have encountered doctors who charge $500 or more just to add a signature to a report that was already in their medical charts.

Because of the cost of obtaining doctor’s testimony, attorneys are often forced to use the medical narrative statute. However, the same doctors who charge thousands of dollars per hour to testify about their treatment of their patients charge up to a thousand dollars to dictate a narrative report, and are either unable or unwilling to provide a report phrased in layman’s terminology rather than medical jargon.

Therefore, in order to use the medical narrative statute lawyers may be forced to interpret the doctor’s technical language into plain English, and provide the intelligible version to the doctor to sign. But if it comes to light that the lawyer drafted the version used in court, the effect can be devastating.

That’s why I have just about abandoned use of the medical narrative statute unless there is already an intelligible, signed report in the medical records. One might as well bite the bullet and pay the exorbitant cost to take a deposition on video to play for the jury in court.

The second point in the article was that a well known  semi-retired orthopedist had been effective in persuading the jury that the plaintiff’s condition was almost entirely preexisting and that there was no serious injury. He regularly reviews files and conducts adversarial medical exams for insurance companies, and has testified hundreds or thousands of times that

I have taken that same doctor’s deposition a few times. The last time he testified for the defense in one of my cases, I had a stack of his prior depositions and was able to thoroughly neutralize his testimony by revealing that he has made a good living for decades by consistently testifying on behalf of insurance companies that no one is injured in an accident.  Watching the jury’s response to his video testimony was pretty amusing. 

Representing an injury survivor in a personal injury case is hard work. Putting together the evidence to present at trial is expensive. Nothing is simple. Nothing is easy. Everything takes more time, effort and money than most people suspect.  Anyone who expects treating physicians to be uniformly cooperative in helping their patients is dangerously naive. And when the defense brings in one of the “usual suspects” among defense doctors to claim that the person was not really hurt, the plaintiff’s lawyer must be prepared to that the defense doctor head on.

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

In the Cook County case of Chraca v. Miles, an Illinois DOT vehicle collided with another vehicle in an intersection. Both drivers claimed that the other ran the red light, and the local police reconstruction was inconclusive. The private citizen, who was rendered an  incomplete paraplegic unable to walk without leg braces and the use of canes or a walker, was represented by Chicago lawyer Martin Healy, Jr. Last week a jury returned a verdict of $25 million.

Paraplegia is a horrific injury. Most people have little idea of the complications that accompany it, including  muscle spasticity, pressure sores and  autonomic dysreflexia.

This paraplegic’s tragedy would have been compounded if the crash had been in Georgia. In a similar case based on the negligence of a Georgia DOT employee in the course of his employment, recovery would have been limited to one million dollars under our State Tort Claims Act, which limits payments to $1 million per person and $3 million per accident. We would have been forced to search for other sources of compensation as the recovery from GA DOT would have been grossly inadequate.

Ken Shigley is a trial attorney in Atlanta, Georgia, whose practice focuses on representing people who are catastrophically injured, and families of those killed, when companies violate rules designed for protection of public safety. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,  and has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale).  Currently he is a national board member of the American Association for Justice Interstate Trucking Litigation Group and treasurer of the 41,000 member State Bar of Georgia.

 For criteria useful in selecting an attorney, see The Smart Consumer’s Guide to Hiring a Great Lawyer.

However, as soon as the bill passed, a few of us began to gather for a series of weekly breakfast brainstroming sessions focused on how to survive and prosper in the new environment. Those sessions helped transform the law practices of several of the participants. Other lawyers around the state began to go through the same sort of process of evaluation and change.

Three years later, we have seen an increase in the frequency and geographical distribution of impressive jury verdicts in injury and death cases. Even counties that had been viewed as black holes for plaintiffs are producing seven and eight figure jury verdicts.

The most recent was a $5 million verdict this week in a hospital malpractice wrongful death case in Gwinnett County. That case involved the death of a new mother due to a fall, as the hospital personnel had not followed fall precautions which were indicated.

Until very recently many of us had simply declined to accept cases in Gwinnett because the juries there were so notoriously hostile to personal injury and wrongful death plaintiffs. I haven’t heard how the $350,000 cap on noneconomic damages in medical malpractice cases may affect that, if at all. It would not be surprising for an economist to reach a $5 million economic valuation on the life of a promising young adult.

A couple of weeks ago in Fulton County, which used to be a big-verdict venue but in recent years has become much more conservative, there was a $54 million verdict, which was reduced to a mere $10.25 million due to the statutory cap on punitive damages which was enacted in 1987.

Last year we had a $2.3 million verdict in a trucking case in conservative, rural Gordon County..  There have even been million dollar verdicts in some of the small, rural, deeply conservative counties.

The “loser pays” provision of S.B. 3 — an “offer of setlement” feature in OCGA 9-11-68 which can require a party to pay the other side’s attorney fees and litigation expenses if it fails to do 25% better at trial than in trial than in a rejected settlement offer — was designed to intimidate and oppress plaintiffs.  However, it has primarily hurt the defense side. In one medical malpratice case, the plaintiff got some $4 million in fees and expenses added to the compensatory damage award under this provision.

There are quite a few other examples that I have not taken the time to compileon a Saturday morning of a holiday weekend.

Why have we seen an increase in substantial verdicts in Georgia after the tort reformers got everything they asked for in the legislature?  Certainly a few minor details of S.B. 3 have been held unconstitutional, but none of those points are substantially involved in these cases.

Another hypothesis is that tort reform has forced plaintiffs’ lawyers to work harder and smarter in case preparation. With so many obstacles thrown in our path, we have to work hard in investigation, in selection and preparation of experts, and in all aspects of trial strategy and preparation.

When that enhanced preparation encounters the most democratic of all institutions in American society — a jury of ordinary people from all walks of life with no political fears or aspirations related to their service on one case — serious cases can get serious verdicts.

Three years ago, one might have predicted that by now we would be out of business and our clients would be out of luck.  Today, however, it’s a great time to be a lawyer representing good people with legitimate claims of serious injury or wrongful death of a loved one.

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

Hunter v. Modern Continental Const. Co., Inc.
— S.E.2d —-, 2007 WL 2822381
Ga.App.,2007.
October 01, 2007

MILLER, Judge.
Pamela Hunter suffered injuries in a car accident with a truck driven by an employee of Modern Continental Contruction Company, Inc. (“Modern Continental”) who was driving to work. She appeals from the grant of Modern Continental’s motion for summary judgment upon her complaint for damages arising therefrom. Since there was some evidence that, at the time of the accident, the Modern Continental employee may have been on a work-related cell phone call or distracted by such a call that he chose not to answer, we find a jury question remaining as to Modern Continental’s liability for its employee’s actions and reverse.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.

(Citation omitted.) Clo White Co. v. Lattimore, 263 Ga.App. 839 (590 S.E.2d 381) (2003).

So viewed, the evidence reveals that Jeffrey M. Stasium, a shift supervisor employed by Modern Continental, was on his way to work on the morning of January 25, 2003 when his truck collided with a car driven by Hunter at an Atlanta intersection. Stasium estimated that the collision occurred at approximately 6:55 a.m. and indicated that he made no cell phone call from his vehicle before the accident occurred. Telephone records, however, reflect that Stasium called Tyrone Campbell, a co-worker, at 6:54 a.m. Further, Campbell deposed that he called Stasium on his cell phone a little before 7:00 a.m. but that Stasium did not answer his call. Stasium acknowledged Campbell’s testimony; stated that he had known the call was from Campbell because Campbell’s name had come up on the screen of his cell phone and that he knew Campbell was calling either because he was “going to be late or he wanted something[ ]” for his job as a welder after getting to work; and indicated that he had given Campbell his cell phone number for business purposes. Stasium also testified that he had provided his cell phone number to everyone on his shift to permit them to notify him if they were running late for work.

Citing Clo White, Hunter argues that summary judgment for Modern Continental was error because a jury question remains as to whether Stamius was on his cell phone conducting company business at the time of the accident, thus making Modern Continental vicariously liable for her damages under a theory of respondeat superior. We agree.

To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment. The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master. The law is clear that in the absence of special circumstances a servant in going to and from work in an automobile acts only for his own purposes and not for those of his employer.

*2 (Citations and punctuation omitted; emphasis in original.) Hargett’s Telephone Contractors v. McKeehan, 228 Ga.App. 168, 169-170 (491 S.E.2d 391) (1997). Given the foregoing, absent evidence that an employee is on a special mission for the employer or that special circumstances exist exposing “the employer to possible liability, the employer cannot be held liable for an automobile accident that occurs while the employee is traveling to or from work. [Cit.]” Clo White, supra, 263 Ga.App. at 840.

The evidence clearly shows that Stasium was not on a special mission for his employer, Modern Continental, as he drove to work. See, e.g., Chattanooga Publishing Co. v. Fulton, 215 Ga. 880, 882(3) (114 S.E.2d 138) (1960); Jones v. Aldrich Co., 188 Ga.App. 581, 583(1) (373 S.E.2d 649) (1988). In opposition to summary judgment, however, Hunter came forward with evidence showing that Stasium may have been on his cell phone regarding company business when the accident occurred or that he might have been distracted by an incoming call from Campbell, whom Stasium knew was calling to tell him that he would be late or that he needed something for his work as a welder when he arrived. Such evidence raises a jury question as to whether Stasium was acting within the scope of his employment upon the existence of business-related special circumstances at the time of the accident and the potential for vicarious liability in Modern Continental. Clo White, supra, 263 Ga.App. at 840.

Jury questions thus remaining, the trial court’s grant of summary judgment for Modern Continental was error. Id. at 839.

Judgment reversed.

BARNES, C.J., and SMITH, P. J., concur.

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

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

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

It was a very good week.

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

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

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

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

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