When younger lawyers ask me for advice on their cases, among my first questions are, “What is the venue?” and “Who is the judge?”   Often the response is, “Uh, I’ll get back to you.”

Facts and law are vitally important. But the identity of the decision makers – judge and jury – are crucial too. While phenomenal verdicts may occur in conservative rural counties in great cases, and the plaintiff will likely recover nothing in a rotten case even in the most generous venue, in average cases the identify of judge and county are crucial. For example, in a fatal log truck crash a couple of years, I worked hard to secure venue in Fulton County (Atlanta) rather than a rural county heavily dependent on the pulpwood industry in which the crash occurred. It made all the difference in the value of the case.

Earlier this year, the Georgia Court of Appeals published an important decision regarding venue in tort cases against state
government. When an action is brought under the Georgia Tort Claims Act against a State government defendant, even when the State entity is not the sole tortfeasor, the mandatory venue provision of O.C.G.A. § 50–21–28 applies. That code section provides that “[a]ll tort actions against the state under this article shall be brought in the state or superior court of the county wherein the loss occurred[.]”

Thus, the determinative factor in venue for personal injury and wrongful death cases against state government in Georgia is determination of where “the loss occurred.”

In Board of Regents of University System of Georgia v. Jordan, 335 Ga.App. 703, 782 S.E.2d 809 (2016), the Court of Appeals of Georgia held:

The term “loss,” as used in the Georgia Tort Claims Act, is defined in OCGA § 50–21–22(3) as “personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.” (Emphasis supplied.) Had the legislature intended to limit venue for claims under the Georgia Tort Claims Act to the county where the negligent acts or omissions giving rise to the damages occurred, instead of where the “loss” occurred, it could have so provided. When the language of a statute is plain and unambiguous and does not lead to an absurd result, it supplies the sole evidence of legislative intent, and it must not be contravened. See Hall County Bd. of Tax Assessors v. Peachtree Doors, 214 Ga.App. 613, 614, 448 S.E.2d 476 (1994). Upon a plain reading of OCGA §§ 50–21–22(3) and 50–21–28, it is clear that the legislature intended to allow a tort action to be brought against the State in the county where economic loss, pain and suffering, mental anguish, and other elements of actual damages occurred. Since it is undisputed in the cases before us that the plaintiffs incurred losses in DeKalb County, venue is proper in DeKalb County.

In this case, even though the claims arose from medical treatment at a state hospital at Augusta in Richmond County, the plaintiffs had corrective surgeries and long hospitalization in DeKalb County. Because part of “the loss occurred” in DeKalb County – generally a more plaintiff-friendly venue – venue was proper in DeKalb County.

The court appears to have invited the legislature to amend the statute to more narrowly define venue options. However, not all such judicial invitations elicit a response from the General Assembly.

There are many potential ramifications for venue determination in tort claims against state government. One illustration is that if a crash involving a state vehicle causes injury in County #1, the victim is transported to a hospital emergency department in County #2, then is transferred to a tertiary care hospital in County #3, and later dies in County #4, there may be venue under the statute in any of the four counties.

With 159 counties in Georgia, ranging from rural and conservative to liberal and urban, venue options are crucial.

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

Last week, there was a verdict for $1,937,500 in Cobb County.  The plaintiff was an assistant attorney general who was a passenger on a motorcycle driven by her brother. She had a broken pelvis,  12 days in the hospital with surgery on the pelvis, about $151,000 medical expense, and no wage loss claim. The defendants were a then-16 year old high school student and the teen’s parents who were included under the family purpose car doctrine.

It vaguely reminds me of a $2.3 million verdict I won in rural Gordon County a while back, with somewhat less medical expense but with a trucking defendant.

The point is that it seems that the county a case is in doesn’t make as much difference as it did 10 or 20 years ago. A good case is a good case in most any venue. 

Of course, that generality does not factor in the potential for “home cooking” if the defendant is prominent and well liked in the county. That can happen anywhere, depending on the vagaries of local politics.

Ken Shigley is a trial attorney in Atlanta, Georgia who 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), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. 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.  Currently he is Secretary of the 40,000 member State Bar of Georgia.

This week a federal judge in California ordered Taser, Inc. to pay $1.4 million in attorney fees to the lawyers whose client only collected $183,000. 

The family of a man who was Tasered multiple times by police trying to subdue him originally was awarded more than $5 million by a jury verdict, for failure to warn Salinas police of the danger of multiple use of a Taser. However, U.S. District Judge James Ware reduced the verdict to $183,000, striking punitive damages, after finding that the man who was high on methamphetamine was 85 percent negligent in the incident.

I get an agreed percentage of what my clients get.  If they get less than we hoped, so do it. If they get nothing, I get no fee. Somehow I think most of my clients would raise some pointed questions if I got paid ten times as much as they do.

Ken Shigley is a trial attorney in Atlanta, Georgia who 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), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. 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.  Currently he is Secretary of the 40,000 member State Bar of Georgia.

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970’s, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of “joint and several liability” with “proportional liability” will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar’s proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

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

The 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).

Ken Shigley 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 “Super Lawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is President-Elect of the State Bar of Georgia (2011-12), 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). He and Sally have been married since 1983, and are the proud parnts of two young adults, Anne Shigley and Ken Shigley, Jr.