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.

In the case of Hartley v. Agnes Scott College, the Supreme Court addressed the question “whether a campus police officer employed by a private college qualifies as a “state officer or employee” who may assert immunity from tort suits under the Georgia Tort Claims Act.” Last year, a plurality decision of the Court of Appeals concluded that the defendant Agnes Scott College police officers were entitled to immunity. Agnes Scott College v. Hartley, 321 Ga. App. 74 (741 SE2d 199) (2013).

In reversing the Court of Appeals, Associate Justice David Nahmias, a Harvard Law graduate who clerked for U. S. Supreme Court Justice Antonin Scalia, wrote, “After considering the GTCA as a whole, rather than only its definitions section, we disagree, because it is clear that the Agnes Scott officers were not acting for any state government entity when they committed the alleged torts.”

The plaintiff in this case contended contends that the private college police officers could not be immune because they do not qualify as state officers or employees as defined in OCGA § 50-21-22 (7), which says in full:

“State officer or employee” means an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state. The term state officer or employee also includes any natural person who is a member of a board, commission, committee, task force, or similar body established to perform specific tasks or advisory functions, with or without compensation, for the state or a state government entity, and any natural person who is a volunteer participating as a volunteer, with or without compensation, in a structured volunteer program organized, controlled, and directed by a state government entity for the purposes of carrying out the functions of the state entity. This shall include any health care provider and any volunteer when providing services pursuant to Article 8 of Chapter 8 of Title 31. An employee shall also include foster parents and foster children. Except as otherwise provided for in this paragraph, the term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity. “

The Court of Appeals had relied on the Campus Policemen Act, OCGA §§ 20-8-1 to 20-8-7, which gives campus police who are POST certified the same law enforcement powers as other police. The dissent in the Court of Appeals pointed out language in the statute excluding private college police from the definition of “state officer or employee.”

Justice Nahmias, in writing for the Supreme Court, saw it differently, viewing the Campus Policemen Act in the context of the Georgia Tort Claims Act which provides the exclusive remedy for tort claims against state government. In reviewing the legislative history of the GTCA, Justice Nahmias cited  Kenneth L. Shigley & John D. Hadden, Georgia Law of Torts – Trial Preparation and Practice § 15:3 (2013 ed.), as follows:

“Prior to enactment of the GTCA, tort claims were brought against individual state employees and officials rather than the state agencies, and funds were allocated by the state to pay settlements or judgments against employees and officials within the course and scope of their duties. The GTCA reversed this scheme, so that claims are brought against agencies rather than individual employees and officials.”

After detailed analysis of the Georgia Tort Claims Act, the Supreme Court concluded that the campus police officers employed a private college clearly were not acting on behalf of any “state government entity,” and therefore did not benefit from the immunity provided to officers acting in such capacity.

The book chapter quoted by the Supreme Court was a collaboration with co-author John Hadden, a brilliant young man who did most of the heavy lifting of research and drafting on that portion of the book. The quoted account of history of practice prior to enactment of the GTCA grew out of Ken Shigley’s experience. From about 1982 to 1992, much of his practice at an insurance defense law firm involved defense of state officials and employees of nearly all departments and agencies of state government as outside counsel retained by the Georgia Department of Administrative Services Risk Management Division.

Since the mid-1990s, that experience has proven useful in representing injury victims and their families in significant liability cases against state agencies under the Georgia Tort Claims Act which was enacted in 1992. These have included cases based upon operation of state vehicles, highway design, etc. Two of the most notable cases against the State of Georgia have included catastrophic crashes of vans or buses carrying large groups of college students.

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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. In 2012, he was included in the “short list” of nominees for the Court of Appeals by the Georgia Judicial Nominating Commission.

There are many reasons for that, some good and some not. Even if you have a regular physician treating a chronic illness, getting an appointment can take a long time. If you call after hours or on weekends you may be told to go to the ER for anything that requires immediate attention.

The Georgia legislature in 2005 passed a poorly drafted omnibus bill designed to make it more difficult for injured people to recover their damages from parties at fault.  The Georgia Supreme Court eventually held the arbitrary cap on non-economic damages in medical malpracticecases was unconstitutional. Other provisions were either limited in their application or turned out to have unintended results that occasionally help well-represented injury victims.

But one section has virtually closed the courthouse to victims of serious personal injury  or wrongful death due to malpractice in hospital emergency departments. 

O.C.G.A. § 51-1-29.5  provides, in part:

(c) In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

(d) In an action involving a health liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the court shall instruct the jury to consider, together with all other relevant matters:

(1) Whether the person providing care did or did not have the patient’s medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;

(2) The presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship;

(3) The circumstances constituting the emergency; and  

(4) The circumstances surrounding the delivery of the emergency medical care.

Focusing on paragraph (c), most lawyers concluded that the standard of “clear and convincing evidence” of “gross negligence” is virtually a guarantee of immunity from liability for a health care provider or hospital in an emergency medicine context. In talking with potential clients who call about potential ER malpractice claims, I have often told them that this law virtually means that unless a doctor was obviously drunk and expressed a willful disregard for causing harm to the patient, the case was virtually unwinnable. It has become virtually impossible to find an experienced lawyer to take an emergency room malpractice case.

But paragraph (d) is also part of the statute. Now, finally, there is an appellate decision that focuses on the jury question of whether or not a particular treatment fit the definition of emergency care.

This month, in Howland v. Wadsworth, — S.E.2d —-, 2013 WL 5543486 (Ga.App., decided October 9, 2013),   the Court of Appeals  affirmed a $5,000,000 Gwinnett County judgment for a double amputee, holding that  whether the patient at some point had stabilized and was capable of receiving medical treatment as a nonemergency patient within the meaning of OCGA § 51–1–29.5(a)(5) was a question for the jury.  The jury could find, as it did, that the facts did not fit the definition of “emergency” so it could find for the plaintiff under the standard of preponderance of evidence of ordinary negligence rather than “clear and convincing evidence of gross negligence.”

In this case, the patient began experiencing pain in her feet and after several days noticed that her feet were cold and that she was unable to warm them, her pain worsened to the point she could no longer walk. She then called 911. An ambulance took her to the local hospital’s emergency room.  In the ambulance en route to the hospital, a paramedic assessed her condition, noted that she had normal vital signs and normal blood circulation in her legs, and obtained a brief medical history of diabetes and hypertension.  Upon her arrival at the ER, she was classified as a “level 4” patient, meaning that her condition was “non-urgent.” She was assigned a bed in “C-pod,” which is an area designated for the examination and treatment of patients who are expected to be “in and out in 90 minutes or less.” The triage nurse  noted complaints of significant pain in both feet that had increased over the past couple of days and that it was hard for her to walk. The nurse noted that her feet were cold to the touch, but that she had “positive” or “palpable” pulses in her feet at the time. 

Eventually, she was seen by a physician assistant who worked in the ER. He noted that Wadsworth was  “moderate” pain, ordered morphine, and did a differential diagnosis and ordered a venous ultrasound exam which ruled out deep vein thrombosis.  He did not order tests to check for partial arterial blockage. He diagnosed cellulitis, which can be treated with antibiotics on a nonemergency basis. Though the patient wanted to be admitted to the hospital for observation, she was given a prescription for antibiotics and pain medication and discharged after three hours in the ER.

About 12 hours later, an ambulance responded to an emergency call to her home in the middle of the night. Upon arrival, the paramedics found her unresponsive, with no blood pressure or pulse. After a paramedic performed CPR, vital signs improved, and she was again transported by ambulance to the same ER. Upon her arrival, Wadsworth had low blood pressure, a diminished pulse, and slow respiration, which are indicators of a near cardiac arrest. Later that afternoon, doctors performed an arteriogram  and determined that the arteries behind both of her knees were completely blocked.

Doctors later determined that the patient’s lower legs had suffered damage to the extent that they were no longer salvageable, and Wadsworth had both legs amputated below the knees.

Testimony of the physician’s assistant and physician that the patient was stabilized and properly could be discharged was evidence upon which the jury could determine that she was not in an “emergency” situation at that point, so that the ordinary negligence rather than “gross negligence” standard should apply.

All medical malpractice cases are still extraordinarily challenging. Emergency room malpractice cases are still even more challenging than others. But with this decision from the Court of Appeals, it may be a little easier to get lawyers to consider taking cases arising out of emergency department negligence in diagnosis and discharge.

Ken Shigley is an Atlanta trial attorney who is a past president of the State Bar of Georgia and a board certified civil trial and pre-trial advocate of the National Board of Legal Specialty Certification .  His practice focuses on serious personal injury, wrongful death and commercial trucking litigation.

The Georgia Chamber of Commerce held a forum on tort reform last week. According to today’s Daily Report, Rep. Rich Golick, chair of the House Non-Civil Judiciary Committee who is a corporate attorney for Allstate Insurance Company in his “day job,” told the attendees:

“Go talk to the plaintiffs bar. … See if consensus can be struck,” he said. “I beseech you — it’s the middle of August and there is a run-off and a general election — now is a great time for quiet conversation in quiet rooms where consensus can be achieved.”

After the forum, Golick said, “My sense is that the General Assembly doesn’t have a taste for litigation that would create a holy war in Georgia.”

Rep. Golick is right. While there may be tweaks in Georgia tort law and procedure on which there could be consensus, my sense of the climate after dealing with the legislature last year as State Bar president is that there is little eagerness to add much more to the broad tort reform legislation that Georgia enacted in 2005.

Here are some of the issues discussed at the forum and my thoughts on them.

E-Discovery.

At the Chamber forum, a representative of General Electric complained about burdensome discovery processes regarding electronically stored information. I’m all for developing a state rule on e-discovery that reasonably limits burdens and costs without enabling concealment of important evidence.

Perhaps the G.E. representative who flew in for the meeting was unaware that there is already a joint Bar-Chamber task force working on this in Georgia. Last spring, one of the last things I did as State Bar president was to cooperate with the Georgia Chamber of Commerce in appointing a joint task force on development of electronic discovery rules to include provisions for cost control and proportionality. By agreement with the Chamber representatives, that task force is chaired by Cobb County Superior Court Judge Steve Schuster and includes 4 Bar appointees and 4 Chamber appointees. They have just begun to work.

Time limit demands.

State Sen. Bill Cowsert of Athens is quoted in the Daily Report saying he would like to see legislation next session that would set “a reasonable length of time to give an insurance company to settle a case.” This grows out of the case Southern General Ins. Co. v. Holt, 262 Ga. 267; 416 S.E.2d 274 (1992), which held that a plaintiff may place a reasonable time limit on an offer to settle for policy limits. If a case is not settled within the time limit, then the insurer may be exposed to a judgment in excess of its insured’s policy limits if a jury returns a verdict for a greater amount.

Insurer bad faith liability is based on the principle that a liability insurer has a duty of good faith to its own insured to give equal consideration to the insured’s interests as its own.  For nearly half a century it has been the law in Georgia that if the insurer refused an opportunity to protect the insured by settlement within policy limits it could be responsible for the full amount of a judgment against the insured. The Holt case in 1992 held that within the facts of that case, a 10 day time limit on an offer to settle for policy limits was reasonable.

The importance of a time limit in this context is to provide an incentive for an insurance company to stop stonewalling and unnecessarily putting at risk the personal or corporate assets and income of the insured defendant.

My general approach has been to give an insurer a 30-day time limit after providing the bulk of medical bills, medical records, income loss records, photos, reports, etc., so that the insurer would have a fair opportunity to assess damages in excess of policy limits. When there is a request for more time, I generally allow a reasonable extension. Occasionally, I have felt that a shorter time limit was appropriate but one should be careful to be reasonable both in substance and in appearance.

Senator Cowsert is quoted in the Daily Report as saying, “Reputable plaintiffs lawyers will give you 30 to 60 days.”  A bill he introduced in the last legislative session would have required 60 days. I told him I generally give 30 days, to which he replied, “yeah, but you’re a good lawyer.”

The key here is the need for reasonableness and fairness on both sides with standards that keep both sides honest. I hope that both sides can work together to develop a fair, simple and balanced standard.

Seat Belt Evidence.

At the Chamber forum, a representative of an auto manufacturer urged change in Georgia law that excludes evidence that an injury victim was not wearing a seat belt. The origin of this rule is that the late House Speaker Tom Murphy did not like seat belts, did not want to wear one, and would allow passage of a law requiring seat belt use only if non-use were excluded from evidence.  I can understand the viewpoint of those who think this makes little sense.

One problem is that even when an injury victim was consistently conscientious about always wearing a seat belt, in the trial of a catastrophic case involving defective design of a vehicle, the defense is likely to bring in highly paid experts to suggest that the person was not wearing the seat belt even if they were.  Part of the strategy is to inject even greater complexity and confusion with highly paid testimony about the meaning of markings on belts and buckles, and whether those result from normal wear and tear versus stress loading. This can add vast amounts to the cost of litigation, bog down a jury in unnecessary complexity on ancillary issues, and often unfairly feed a “blame the victim” defense strategy.

I don’t know what the ideal solution should be, but I do hope that any legislative changes would be the result of negotiation and conscientious consensus rather than one side bulldozing over the other in the legislature.

Attorney Fees.

Georgia has five statutory “loser pays” rules. The oldest is OCGA 13-6-11 which was passed with the Code of 1863. For nearly 150 years, it has provided that when a defendant acts in bad faith, is stubbornly litigious or causes unnecessary trouble and expense, it can be held liable for expenses of litigation including attorney fees.  In the past generation, there has been a series of cases holding that violation of mandatory safety rules can be considered by a jury as evidence of bad faith in the transaction, and thus a basis for an award of attorney fees.

I have used this in trucking cases where we can prove violation of Federal Motor Carrier Safety Regulations or the correlate state safety rules.  There is also a case approving use of a fire safety code as evidence of bad faith in the transaction.

Whenever asked, I have urged my fellow plaintiff lawyers to refrain from pushing this too far and provoking a backlash. Whenever a younger lawyer has asked my advice, I have told them to avoid overreaching by claiming that there is bad faith every time a driver breaks a traffic law.That is qualitatively different from systemic violation of very specific safety rules which a relatively sophisticated party is obligated to follow and require its employees to follow for protection of the public.

Perhaps there could be a compromise on defining the scope of what would constitute bad faith in the transaction under OCGA 13-6-11, perhaps by simply codifying what is in current case law. Or perhaps the provisions of this statute could be made available to both sides. But I urge legislators to refrain from throwing out the baby with the bath water by more substantially changing a law that has been functional part of the Georgia code since the Civil War.

Medical costs.

Some at the Chamber forum advocated allowing evidence of the actual amount a medical provider accepted in payment from a health insurance company in payment of medical bills, rather than the larger “sticker price” that appears on a medical bill. That would override the venerable “collateral source” rule that does not allow presentation to the jury of either liability insurance or medical insurance information. If a person has provided for her health care by having insurance the defendant who causes her injury should not get a discount for that.

Frankly, there are a few medical providers, particularly some pain clinics, that inflate the “sticker price,” knowing they will accept a lesser amount from an insurer. Their reasoning is incomprehensible to me.  On the rare occasion when I have seen that in representing a plaintiff, I have hired a billing expert to provide evidence of what the UCR (usual, customary and reasonable) billing amount should have been. I don’t want to blow my credibility by endorsing obviously inflated medical bills.  If bills are inflated, either side should be able to show what the UCR billing should have been, and if so perhaps the amount of an enforceable medical lien should not exceed what a jury finds is the UCR amount.

The larger reality today is that medical insurance programs usually include an aggressively enforced reimbursement clause requiring that the insurer be paid back most or all of what they pay for an injury victim’s medical bills. If the law were changed to limit evidence of medical expense to the amount a medical provider accepted under a contractual agreement from a medical insurer, then in all fairness the jury should also be told that none of the money included in the verdict for medical expense would go to the injured person but would only benefit an insurance company. Therefore, they should award more money if they intend to help the injured person.

Then why not let it all hang out by allowing evidence of the defendant’s liability insurance limits (which jurors usually want to know), what both parties paid for their various insurance coverages, etc.?

Or just leave well enough alone.

Duty to Warn.

An auto industry representative urged adoption of a law eliminating any continuing duty  of manufacturers to warn of some danger it became aware of after the sale of a vehicle. On first blush that may sound sound fair. But what of the situation where a manufacturer learns that a design defect is responsible for a mounting number of deaths and catastrophic injuries? Should there not be a duty to warn consumers of that?

Perhaps there is a room for a legislative tweak in existing law on duty to warn, but as Rep. Golick suggested, it should be done through consensus.

Bifurcation of trials.

Georgia law already requires bifurcation of trial where punitive damages are claimed, with a second phase of trial to consider any punitive award after liability and compensatory damages are decided. A representative of an auto manufacturer proposed a further level of bifurcation between liability and damages. It is not entirely clear from the news story exactly what he was proposing, but I am confident it is carefully designed to help defendants and reduce any leverage available to injured people.

One astute defense strategy is to attempt to exclude all evidence of the defendant’s bad conduct by any means available, sometimes by conceding liability at the last moment after years of fighting accountability. Then, if that strategy works, the plaintiff’s injury is removed from the context of what caused it and the trial becomes entirely about attacking the injured plaintiff to try to make it appear as if the jurors are inconvenienced merely because a greedy plaintiff is overreaching. Never mind that the defendant may have resolutely denied liability right until the eve of trial.

It has been the law in Georgia since at least the mid-19th century that evidence of the defendant’s conduct goes into evidence even if there is an offer of a stipulation to liability. That is a good rule and we should keep it.

 I’m a pretty conservative guy, both politically and personally, a member of a bunch of conservative organizations, and spent a decade representing insurance companies before I went into plaintiffs’ practice. I don’t see the world in terms of personal injury plaintiffs always being right and good or corporations and insurers always being wrong and evil. I recognize that there is necessarily always a dynamic interplay between interests in setting the rules in the area of tort and insurance law.

The outcome is likely to be better and fairer if it is a result of respectful dialogue, negotiation and consensus rather than pure power politics.

 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).

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.

Before rushing into legislation to create yet another “loser pays” rule in Georgia law, it is useful to examine the five forms of “loser pays” rules we already have. I wrote earlier about OCGA 9-11-68 (offer of judgment / offer of settlement rule and frivolous claims and defenses rule) and OCGA 9-11-14 (no justiciable issue, delay, harassment).

The 1989 wave of tort reform legislation included O.C.G.A. §§ 51-7-80 et seq., which 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.

It is a complete defense to the tort of abusive litigation if the allegedly abusive position is dropped within thirty days from receipt of that notice. Other defenses are that the position was asserted in good faith, though that is an affirmative defense in which the burden of proof is on the party that had asserted the position, and that the party against whom the abusive litigation claim is asserted was substantially successful in the underlying litigation. The “reasonable inquiry” requirement of is an objective good faith requirement which imposes a duty on attorneys to conduct a reasonable inquiry into the facts and law prior to initiating, continuing, or procuring a claim on behalf of a client, so the standard is what would be objectively reasonable for a competent attorney under the circumstances.

Where the allegedly abusive claim or defense survives a motion for summary judgment, or involves a question of first impression, the abusive litigation claim fails. Bacon v. Volvo Service Center, Inc., 288 Ga. App. 399, 654 S.E.2d 225 (2007) (survived summary judgment); Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004) (first impression); Owens v. Generali-U.S. Branch, 224 Ga. App. 290, 480 S.E.2d 863 (1997) (lack of binding authority at time claim asserted).

While seldom invoked in practice, this provision is available and appropriate in responding to truly frivolous lawsuits.

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.

“Loser pays” is a popular theme among advocates of “tort reform,” many of whom may not understand what the popular political calls for “loser pays” or “tort reform” really mean in any detail. Perhaps some people who say they are for it do not understand that Georgia already has five “loser pays” rules that have been enacted in legislation over the years.

Yesterday I posted a summary of one of our “loser pays” rules, the offer of judgment under OCGA 9-11-68, which applies when a party rejects an offer of judgment or settlement and does not do at least 25% better at trial.

A second “loser pays” provision in Georgia law strikes more directly at the concept of frivolous lawsuits, which all tort reform advocates deplore. (I have no idea how any lawyer could survive economically by filing frivolous lawsuits which are almost always doomed to fail, but that is another topic.)

O.C.G.A. § 9-11-68(e), which was enacted as 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.

A frivolous claim or defense includes, but is not limited to:

“(A) A claim, defense, or other position that lacks substantial justification or that is not made in good faith or that is made with malice or a wrongful purpose,” as defined in O.C.G.A. § 51-7-80;

(B) A 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; and

(C) A claim, defense, or other position that was interposed for delay or harassment.”

A party may elect to pursue either the procedure specified in this subsection or the procedure provided in O.C.G.A. § 9-15-14 (an older “loser pays” rule which I will discuss in another post), but not both.

This procedure applies equally to both frivolous claims by plaintiffs and frivolous defenses by defendants.  One cannot help but wonder whether those who are not satisfied with sanctions that go both ways want to put a well-funded thumb on the scale of justice favoring the defense only.
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. 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. 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).

One of the five forms of “loser pays” rules in Georgia is in O.C.G.A. § 9-11-68. Passed as part of the 2005 tort reform legislation, it 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%. See Smith v. Baptiste, 287 Ga. 23, 694 S.E.2d 83 (2010).

Soon after this law was passed, I began hearing insurance adjusters and defense lawyers express the idea that it could backfire. They were right, as the largest fee “loser pays” awards have been against defendants and insurers that refused opportunities to settle for far less than the ultimate value of claims. Perhaps that realization explains why in the past seven years, I have received offers of judgment under this statute only a couple of times.

However, I hear anecdotal accounts that it is used more often against lawyers in high volume settlement practices who are reluctant to take cases to trial.

This tort reform statute provides that at any time more than thirty days after the service of the lawsuit and at least thirty days before trial (or twenty days if it is a counter-offer), either party may serve upon the other party a written offer with a caption referring to the Code section, to settle a tort claim for the amount of money specified in the offer, with either dismissal or entry of judgment accordingly.

Such an offer must be in writing, refer to the Code section, identify the parties and claims involved, state with particularity any conditions, the total amount of the proposal, whether it includes attorney fees and expenses, and be accompanied by a certificate of service showing service by certified mail or statutory overnight delivery.

If the plaintiff rejects an offer of settlement made by a defendant, the defendant is entitled to recover reasonable attorney’s fees and expenses of litigation incurred from the date of the rejection of the offer through the entry of judgment “if the final judgment is one of no liability or the nal judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.”

If a defendant rejects an offer of settlement from a plaintiff, and the plaintiff recovers a final judgment more than 125% of the amount of the offer, the plaintiff is entitled to recover reasonable attorney’s fees and expenses of litigation incurred from the date of the rejection of the offer of settlement through the entry of judgment. An offer under this provision remains open for thirty days unless withdrawn in writing prior to acceptance in writing.

A counteroffer is a rejection, but may be couched as an offer in compliance with the statute. Either acceptance or rejection of such an offer must be in writing and served upon the offeror. An offer that is neither withdrawn nor accepted within 30 days is deemed rejected. There may be multiple successive offers.

If the conditions for award of fees and expenses apply, and the underlying judgment is appealed, the trial court can award the fees and expenses only if the judgment is affirmed.

Moreover, if the trial court determines that an offer under this statute was “not made in good faith in an order setting forth the basis for such a determination,” it may disallow any such award. In at least one case, the Court of Appeals upheld a trial judge’s decision to deny an award of attorneys’ fees and costs under this provision based on the offer having not been made in good faith. Great West Cas. Co. v. Bloomfield, 303 Ga.App. 26, 31(5), 693 S.E.2d 99 (2010).

The court’s opinion provides substantial analysis that could be helpful in arguing that an offer of settlement does not justify attorneys’ fees. In that case, for example, the court noted that a defense verdict, while relevant to consideration of a defendant’s good faith, was not dispositive, and that other evidence, such as the defendant’s subsequent offer that was many times higher than the § 9-11-68 offer, could provide a basis for denial of fees under an abuse of discretion standard.

A double-edged sword, this tort reform provision is used much less than was expected when it became law. It may be used when one side makes an offer for a realistic valuation of the case at least a month before trial. For example, if the value of the case exceeds policy limits, the plaintiff may join an offer under O.C.G.A. § 9-11-68 with a time-limit settlement offer to induce a reasonable settlement. Similarly, the defendant may utilize this section to induce settlement by making an offer keyed to a completely realistic case valuation.

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), and 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 a board member of the Trucking Litigation Group and secretary of the Motor Vehicle, Highway & Premises Liability Section.

In a 5 -2 decision, with Justice Benham and Presiding Justice Hunstein dissenting, the Georgia Supreme Court found that (1) the jury is allowed to apportion damages among the property owner and the criminal assailant, and (2) instructions or special verdict form requiring such apportionment would not violate the plaintiff’s constitutional rights. In addition to the Supreme Court’s  analysis of the statutory construction of O.C.G.A. § 51-12-33, the opinion dispensed with the policy arguments argued by the plaintiffs.

None of that came as a surprise to me. The apportionment of fault rule as opposed to a rule of joint and several liability does have a certain appeal to people who have not had to deal with the realities of representing innocent injured people.

The apportionment statute presents an advocacy challenge for lawyers representing innocent people injured through the negligence or wrongful acts of others. For example, if a jury apportions 95% of a $1,000,000 verdicts to a non-party from which no damages can be recovered, and 5% of the verdict to a solvent defendant, then the innocent plaintiff only collects $50,000 of the $1,000,000 judgment. And if the solvent defendant made an offer of judgment under O.C.G.A. § 9-11-68, then the victim may be tagged with that defendant’s defense expenses and come out with nothing at all.

How can this be addressed? Several ideas have been put forward, none of which are foolproof. However, here are a few.

–  A timeline may be used to show a long pattern of negligence in management of a defendant company over a period of weeks or months, compared with the few seconds or minutes in which the the insolvent defendant or non-party was involved. For example, if a trucking company had a long pattern of failure to manage truck driver safety, hours of service, vehicle maintenance, etc., and both their truck driver and another driver were negligent at the moment of the crash, consider graphically illustrating the disparity in the amount of time each was involved in conduct leading to the crash. If a premises owner was repeatedly on notice of the risk of crime on the premises but allowed conditions to become a virtual invitation to criminal assault, then the timeline might help overcome the inclination to apportion everything to the criminal who exploited a target of opportunity.

– A scale may be used to illustrate the relative weight of the number of choices made by each party or non-party to whom fault must be apportioned. If a pebble or a coin on a balance scale represents each choice made that leads up to an injurious event, those made over months or years of safety mismanagement will weigh far more than one momentary bad choice at the time of the incident.

– Think in terms of epidemiology and prevention. The Centers for Disease Control has an entire department devoted to studying the epidemiology of accidents and injury prevention. Analyze how a prudent person in the position of the defendant could easily foresee a risk of injury and the simple, inexpensive actions by the party with the greatest opportunity to manage the situation could have prevented it. Then figure out graphic ways to present that.

None of these approaches are perfect, but they may suggest ways to overcome the obstacles created by the apportionment statute.

———–

Ken Shigley is immediate past president of the State Bar of Georgia and a double board certified Civil Trial Advocate and Civil Pretrial Advocate of the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). He is lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12). In addition, Mr. Shigley has an “AV Preeminent” rating in Martindale-Hubbell Law Directory and is listed as a “Super Lawyer” in Atlanta Magazine,  “Legal Elite” in Georgia Trend magazine, and in “Who’s Who in Law” in Atlanta Business Chronicle.

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.

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Bar committee OKs rule change
Public defenders in same circuit would be allowed to represent co-defendants under proposed amendment

The State Bar of Georgia’s Disciplinary Rules and Procedures Committee on Wednesday unanimously approved a rule change that would allow public defenders in the same circuit to represent co-defendants unless specific conflicts of interest are identified.

The proposed amendment to the Georgia Rules of Professional Conduct on imputed disqualification, also known as Rule 1.10, states: “(d) A lawyer representing a client of a public defender office shall not be disqualified under this rule because of the representation by the office of another client in the same or a substantially related matter unless there is a conflict as determined by Rules 1.7, 1.8(f) or 1.9,” which determine conflicts of interest, according to Bar President Kenneth L. Shigley.

Backers of the amendment hope it serves as a compromise in a debate that has burned hot since April 2010, when the bar approved a formal advisory opinion prohibiting intra-circuit representation of indigent criminal co-defendants. Critics of that opinion, which is pending review by the state Supreme Court, said it would result in higher costs for the cash-strapped indigent defense system as more expensive outside lawyers would need to be hired to resolve conflicts.

But some lawyers questioned whether the proposed amendment would have any significant effect.

On Wednesday, Shigley said the new rules change allowing intracircuit representation of co-defendants should help public defender offices handling cases with multiple defendants where there is only a potential conflict.”The proposed amendment to Rule of Professional Conduct 1.10 is a measured, moderate approach to representation of multiple defendants in the public defender context,” Shigley said in a written statement. “It recognizes the need for practical flexibility in administration of the statewide public defender system, without diminishing lawyers’ ethical standards or defendants’ rights to vigorous, conflict-free representation.”

. . . .

The proposed amendment will go to the bar’s Executive Committee, which is scheduled to meet on Oct. 6 in Macon. Then, it would need the approval of the bar’s Board of Governors, which will convene on Oct. 29 at Jekyll Island, and finally the state Supreme Court before going into effect.

The state high court agreed to review the formal advisory opinion last year, but in August it delayed any decision until January. Members of the bar, as well as the Georgia Public Defender Standards Council, began publicly discussing a rules change that would have exempted public defenders from the conflict rules applied to private firms late this summer.

Georgia Public Defender Standards Council Director W. Travis Sakrison spoke against the formal advisory opinion during Wednesday’s hearing of the Disciplinary Rules and Procedures Committee.

According to Sakrison, the formal advisory opinion would require all public defender offices to divest themselves immediately of all co-defendants in cases where there may be a potential conflict. That rule would balloon the number of conflict cases and drain the public defender system of resources, he said. The estimated cost of finding new conflict counsel would have required the GPDSC to ask the Legislature for millions more in its budget, he said.

Instead, many circuit public defenders wanted their offices to have the ability to represent co-defendants up until the point an actual conflict arose, as long as proper ethical screens, such as separate computers and filing areas, were in place the entire time. And then, if there were an actual conflict, the public defender office could retain one of the co-defendants.

But supporters of the formal advisory opinion said the opinion supported the existing rules, which already outline conflicts and are meant to ensure adequate representation of indigent criminal defendants—a statement the Disciplinary Rules and Procedures Committee chairman, John G. Haubenreich, agreed with on Wednesday.” . . . .

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.

The commitment of  constitutional conservatives’  to our country’s founding principles is widely known. That of course includes the Bill of Rights that was ratified along with the original Constitution, as well as other amendments adopted since that time.

Probably everyone is familiar with some of the key concepts in the Bill of rights, including:

• Free exercise of religion (First Amendment)
• No establishment of religion  (First Amendment)
• Freedom of speech (First Amendment)
• Freedom of press (First Amendment)
• Right to peaceably assemble and petition government for redress of grievances (First Amendment)
• Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”
• Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
• Right against self-incrimination in criminal case (Fifth Amendment)
• Due process of law (Fifth Amendment)
• No double jeopardy (Fifth Amendment)
• Right to face accuser, impartial jury and assistance of counsel in criminal cases (Sixth Amendment)
• No cruel or unusual punishment, excessive bail or excessive fines (Eighth Amendment)

Equally sacrosanct in our Constitution since 1789 is the Seventh Amendment, which provides:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

 The right to a trial by jury for civil suits dates back almost 800 years, to the signing of the Magna Carta. Article 39 of the Magna Carta specifically guaranteed the right to a jury trial for civil suits and criminal cases.

Our Founding Fathers also agreed with the importance of a trial by jury. In the words of James Madison, “In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

Other founders were equally adamant about the critical importance of access to civil justice. Thomas Jefferson called civil jury trials, “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

But today, that Seventh Amendment right may well be the most ignored and endangered of those enumerated in the Bill of Rights. After 25 years of propaganda  from corporations that seek to avoid accountability for harms caused to ordinary people has threatened to shred the constitutional right to jury trial through a variety of procedural and substantive roadblocks, all at the expense of ordinary American citizens’ Seventh Amendment rights.

I trust that true Constitutional conservatives in Congress will be as enthusiastic about upholding the Seventh Amendment right to jury trial in civil cases as they are about other Constitutional rights.

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

Since enactment of the “tort reform” legislation in 2005, we have argued in many cases that the legislature left in place, in OCGA 51-12-31, the rule of joint and several liability in cases where the injury victim was to no degree responsible for anything related to the injury.  Reading the plain language of the code sections, that clearly makes sense.  Several trial courts have agreed.

However, in Cavalier Convenience, Inc. v. Sarvis, 2010 WL 2698381, decided on July 9, 2010, a three judge panel of the Georgia Court of Appeals reversed a trial court that had ruled in the manner I think makes sense. The Court of Appeals held, in part, that

“The trial court’s contrary construction – that apportionment is mandated only if the plaintiff is to some degree at fault – essentially overlooks the use and placement of the ‘ if any’  clause.”

I respect the Court of Appeals and its individual judges, but respectfully disagree with this holding.

It is an important issue affecting many Georgians, as mandatory apportionment of damages among those at fault even when they are  absent non-parties from whom recovery is legally and/or financially impossible, to the disadvantage of seriously injured Georgians who are totally blameless, can have draconian results.

Perhaps the Supreme Court will grant certiorari and reverse this decision.

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, wrongful death, products liability,  spinal cord injury, brain injury and burn injury cases. He is also president-elect of the State Bar of Georgia. This post is subject to our ethical disclaimer.

All of a sudden, with oil from the Deepwater Horizon rig threatening to ruin the entire Gulf of Mexico, limits on legal liability don’t look so good.

Charles M. Silver, the McDonald Chair in Civil Procedure at the University of Texas at Austin, says that the comments some politicians have made after the spill ooze irony – and make a pretty strong case against tort reform. Said Silver,

Maybe when we understand that tort reform is all about not being responsible for our mistakes, we’ll understand that tort reform isn’t good for our society. . . . Looking at tort reform in light of the BP leak holds a certain fascination. It at least makes you wonder which politician will be the first to stand up against personal responsibility.

The clever phrase “tort reform” was ingeniously packaged to fool people into supporting proposals to deprive them of their rights.  Most people don’t know what a “tort” is and “reform” sounds good. But when folks understand that it’s a political deal to relieve wrongdoers of personal and corporate responsibility when they hurt other people, it doesn’t seem like such a good idea.

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

This post is subject to our ethical disclaimer.

Georgia’s constitution guarantees the right to a jury trial only with respect to cases as to which there existed a right to jury trial at common law or by statute at the time of the adoption of the Georgia Constitution in 1798. The Court traced the right to jury trial in medical malpractice cases all the way back to 14th century England and developed as part of English common law. That common law of England as it existed in 1776 was adopted as part of Georgia law prior to adoption of the first Georgia constitution in 1798. The existence of a cap on the damages that a jury can award violates the constitutional right to trial by jury. Click here for the full text of the decision in Atlanta Oculoplastic Surgery, PC v, Nestlehutt.

Because the unanimous ruling is based upon a broad constitutional principle, it would take a constitutional amendment to reinstate the cap. Only a few days remain to introduce such an amendment in the General Assembly, where it would be difficult to muster the required two-thirds majority in both the House and Senate.

No one expects the proponents of rationed justice to give up. But they will have a difficult path.

Ken Shigley,is treasurer of the State Bar of Georgia, of which he has been elected to become president-elect on 6/19/10 and president on 6/4/11.  He has extensive experience representing parties in  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,  has been listed as a “Super Lawyer” (Atlanta Magazine), in the Bar Register of Preeminent Lawyers (Martindale), and among the “Legal Elite” (Georgia Trend Magazine).

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

But in the midst of the “pick and ax” work of litigation, sometimes it’s good to step back and look at the tort law system in historical perspective. Some folks who push hardest  to cut off the rights of folks who are hurt badly due to someone else’s carelessness seem to think that this whole area of law sprung up in the past generation.

But the roots go back 4,000 years.

The story of  tort law begins around 2100 B.C. in ancient Sumeria, the birthplace of Abraham, in the area of the Tigris-Euphrates delta in present day southern Iraq and Kuwait.   Much as later American tort law would emphasize business, insurance, motor vehicles and manufactured products, Sumerian laws focused on their context, including pragmatic rules for orderly compensation supplanting the instinct for uncontrolled revenge.  The Laws of Ur-Nammu (c. 2112–2085 B.C.)  mandated compensation in silver for putting out a man’s eye, and the Code of Lipit-Ishtar (c. 1934-1924 BC) set a negligence standard for property damage to a house.  The Sumerian city-state of Eshnunna developed a legal code (c. 1900 B.C.), that expanded upon these principles of compensation for damages done to another, addressing conflicts over sunken boats, gored oxen, biting dogs and  collapsing walls.

A couple of centuries later, upstream in the Tigris-Euphrates river valley,  Sumerian laws become the foundation of the Code of Hammurabi (c. 1700 BC).  Included were early versions of the principal features of tort liability – intentional tort, negligence, strict liability, indirect causation, fixed versus variable compensation, notice, knowledge, objective standards for conduct, monetary compensation for private harms, and perhaps even contributory negligence. 

When Moses led the Hebrews out of Egyptian slavery (circa 1440 B.C. –  1290 B.C.), the Mosaic laws included echoes of Sumeria (father Abraham’s hometown) and Hammurabi.  The Torah is filled with what we think of as ‘tort’ rules, indicating the depth of the roots of tort law in the Judeo-Christian tradition.  Precursors of tort law in the Pentateuch include the spreading fire, the straying livestock, the uncovered pit, the bull goring another bull (property damage), the bull goring humans (personal injury), the injunction to maintain a railing around one’s roof, compensation for  accidental injury of one man by another swinging an ax, and that one man quarreling with and injuring another man must pay the wages of the injured man until he recovers.

A thousand years after Hammurabi, the legal system of ancient Greece began to emerge. The emphasis was on  fairness and integrity of judges more than the specifics of rules and doctrine, as judges were chosen by the parties much as private mediators and arbitrator are chosen today.  However, running through is a growing preference for resolving disputes through just compensation rather than the bloody retribution and feuds of old. Principles of corrective justice emerged. 

Plato in The Laws wrote of “little repeated torts between neighbors” for which there was strict liability to others for either personal harm or invasion of property, and awards of a multiple of pecuniary damages for “churlish” conduct.  Aristotle in Nichomachean Ethics taught the rectification of marginal inequality created by involuntary transactions in which either an intentional act or an unintentional “mistake” – equivalent to concept of negligence in modern tort law – causes foreseeable injury.  The amount of inequality to be rectified was the the community’s valuation the physical injury due to the defendant’s wrongful act.  Customary Greek law was first codified by Dracon, circa 622 B.C., with penalties so harsh as to give us the word draconian and as to require reform within a generation. By 594 B.C., Salon was given a year to reform the Athenian constitution, legal code and law courts. Under the Code of Salon, juries of as many as 500 members determined both fault and penalties, a spectacle against which those who distrust modern juries would surely recoil.

Early Roman law was simple and pragmatic, arising from an agrarian culture thrust into a role of economic and military dominance.  The disparate sources of customary laws were codified initially on ten wooden panels around 889 B.C. by a panel of ten patrician jurists (Decemvirs), into the “Ten Tables,” later expanded by 450 B.C. to the “Twelve Tables.” Private wrongs were called “delicts.” The penalty for intentional homicide was blood vengeance at the election of the victim’s family, while for an unintentional homicide payment of a prescribed number of cattle or a ram (scapegoat) for ritual sacrifice by the victim’s family.  For accidental personal injury there was often an election between retaliation in kind or a specified payment. Delicts addressing various categories of property damage required two or three times the amount of actual pecuniary loss.

The Twelve Tables were replaced by the Lex Aquila, enacted by popular plebiscite circa 286 B.C.  While preserving the general rule of strict liability for one’s actions, the Lex Aquila introduced elements of fault and negligence. To encourage truthfulness, willful denial of a meritorious claim could result in doubling of the damages awarded.  The Lex Cornelia ( c. 67 B.C.) adjusted monetary remedies upward to account for four centuries of inflation since adoption of the Twelve Tables.

Throughout Rome’s thousand year dominance, its laws were continually reformed, refined, and influenced by legal scholars, culminating in the Justinian Code. Except for the limitations inherent in a class-conscious, patriarchal society heavily dependent on a slave economy, Roman law provided the foundation for civil remedies for personal injury, including (1) money damages as the dominant remedy in resolving civil disputes; (2) the identification of instances in which strict liability for the consequences of one’s actions might not apply, such as in the instance of action not voluntarily taken; (3)  transparency in judicial decision making as Praetors were required pronounce the law they would apply; and (4) judicial discretion to determine when strict application of legal rules, or the absence of rules and remedies, would produce a manifestly unjust outcome.

Over thousands of years, these early foundations of tort law led to the development of English common law and our American tort law system.  This body of law has been in the process of reforming to meet the changing needs and conditions of western civilization for 5,000 years.

Sometimes the pendulum swings too far in one direction or another, and when that happens, lawmakers and judges tug it back toward the middle of the path. Fortunately, we have some legislators in both parties who understand the issues in enough depth to make wise choices rather than being consumed in the urgency of political sausage making while struggling with the immediacy of budget problems and the cacophony of interest group demands. Some of  the folks who beat the drums loudest for “tort reform” go too far, sometimes out of a desire to generate political campaign contributions from particular interests. But some ideas in the “tort reform” area can have merit if applied fairly and in moderation.

Over time, despite the excesses on the margins, the path of development of personal injury law tends to be consistent with Georgia’s state motto: “Wisdom, Justice, Moderation.”

Ken Shigley, an Atlanta attorney, is a national board member of the Interstate Trucking Litigation Group. His practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in commercial trucking and bus accidents. Mr. Shigley also has extensive experience representing parties in  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,  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 treasurer, and unopposed as a candidate for president-elect, of the 41,000 member State Bar of Georgia.

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