In The News
July 22, 2015 (Daily Report)
Ken Shigley, former president of the State Bar of Georgia, has been elected chair of the Motor Vehicle Collision, Highway & Premises Liability Section of the American Association for Justice, the largest section of the national nonprofit plaintiff lawyers' organization.
As chairman of the 2.500-member section, Shigley said he will be responsible for growing the section's continuing legal education programming and coordinating with the section's litigation groups, which include trucking litigation, bus litigation, traumatic brain injury, spinal cord injury, motorcycle litigation, bicycle litigation, resort torts and inadequate security.
The section will sponsor national CLE programs in Boca Raton, Florida; New Orleans and Los Angeles.
He also said he hopes to garner more participation to support lobbying efforts in Washington and to recruit liaisons in all 50 states by the end of the month.
"The most challenging thing is probably to get people in all 50 states to do their parts," he said, adding that it is particularly difficult to elicit participation from members in a volunteer-based organization.
Shigley began his term as chair on July 13 at the group's annual meeting in Montreal, and he will serve until the July 2016 annual meeting in Los Angeles.
A graduate of Furman University and the Emory University School of Law, Shigley has primarily focused on plaintiffs wrongful death and personal injury lawsuits and insurance coverage disputes throughout his career.
He served as president of the State Bar of Georgia from 2011 to 2012, as well as board chairman of the Institute for Continuing Legal Education in Georgia, as a trustee of the Institute for Continuing Judicial Education in Georgia, and as a member of the American Bar Association House of Delegates.
April 29, 2015 (Daily Report)
The chairman of Georgia's judicial ethics agency said the U.S. Supreme Court's decision upholding a Florida ban on judges and judicial candidates personally soliciting campaign contributions appears unlikely to spur Georgia to reinstate its own such ban.
In 2002, the U.S. Court of Appeals for the Eleventh Circuit struck down Georgia's rule, which had been challenged by a candidate seeking to oust then-Chief Justice Leah Ward Sears four years earlier. But Florida, although covered by the Eleventh Circuit, retained its ban. It was challenged by judicial candidate Lanell Williams-Yulee after she was reprimanded by the Florida Supreme Court for signing a campaign fundraising letter when she was running for a Hillsborough County judgeship.
On Wednesday, a splintered Supreme Court upheld Florida's ban, with Chief Justice John Roberts writing that the prohibition did not unduly trample candidates' rights to free expression.
"Judicial candidates have a First Amendment right to speak in support of their campaigns," Roberts wrote. "States have a compelling interest in preserving public confidence in their judiciaries. When the state adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A state's decision to elect judges does not compel it to compromise public confidence in their integrity."
Lester Tate, chairman of the Georgia Judicial Qualifications Commission, said the state's experience since its ban on personal fund-raising was lifted has not noticeably diminished public confidence in its judges. Tate was among the members of a committee, including representatives from each of the state's court divisions, that crafted revisions to the Georgia Code of Judicial Conduct that are under consideration by the Georgia Supreme Court, and he said no such bar is among them.
"We specifically did not include a ban on personal solicitations because we felt like it left incumbent judges at a tremendous disadvantage," he said. "Arguably, I guess we could ban [nonincumbent] candidates as well, but it's just difficult—if you're going to have elected judges—to tell then they can't ask for money."
But plaintiffs attorney Ken Shigley, who like Tate is a former president of the State Bar of Georgia, said the ban is worth revisiting in Georgia.
“For all reasons stated by the Supreme Court, a ban on direct solicitation of campaign contributions by judges and judicial candidates is important for confidence in the integrity and neutrality of the judicial system,” Shigley said via email. “If a judge could directly solicit a contribution from a lawyer who has cases before that judge, many lawyers would feel that they could ill afford to say no. Such direct solicitations would create an impression of justice for sale. As bad drives out good, good judges could be forced to play that game or lose their judgeships in expensive election campaigns. It would be a slippery slope toward total undermining of any confidence in the elected judiciary.”
In the wake of the U.S. Supreme Court's Citizens United decision, said Tate, "tremendous amounts of money are pouring into campaigns, and it makes it very difficult to compete."
Tate said that, unlike states such as West Virginia and Alabama where judicial races are partisan and can run into the millions of dollars, "Georgia has had a much better experience. In our nonpartisan system, you need to have bipartisan support. Typically, that involves getting prominent people from both parties to help solicit support, and it's difficult to have a campaign fundraiser when the candidate's not involved."
There has been no problem in allowing sitting judges to solicit funds in a contested election, he said.
"We didn't want to come up with a solution when we didn't have a problem," Tate said.
He noted that the revised canons, which have not yet been published for public comment, ultimately will be subject to approval by the Georgia Supreme Court.
"The JQC can recommend, but we just enforce the canons—it's ultimately a question for the Supreme Court. But I don't see a lot of emphasis on it; if we'd had a lot of problems, with judges calling cases for lawyers who donated, that would be different," said Tate.
Georgia Supreme Court Chief Justice Hugh Thompson said via email that the court was aware of Wednesday's U.S. high court decision, "and we are in the process of redoing our canons and rules as they relate to elections. The rules should be completed soon, although we have not yet put them out for public comment. I assure you that our rules will follow the law."
State Bar of Georgia General Counsel Paula Frederick said the bar has taken no position on the issue.
Cobb County Superior Court Judge Mary Staley, president of the Council of Superior Court Judges, said the council has not been following the issue.
April 28, 2015 (Daily Report, Op-Ed by Ken Shigley)
The families of the five Georgia Southern University nursing students killed and the two injured last week when a tractor-trailer ran over them on I-16 bear a huge burden of pain and grief. As a parent, I cannot imagine anything worse than the sudden death of a child who has had you wrapped around her finger from the first time you held her in your arms.
The families need time, space, privacy and gracious consideration from others to have space to grieve, each in their own way.
After any such tragedy, though, waves of welcome and unwelcome people descend upon the survivors. First may come the well-meaning relatives, friends, neighbors and pastors. That loving embrace can help one keep going through the early days.
But after the funeral, most folks go back to their everyday lives, leaving parents and siblings to sit in the departed child's bedroom and weep for hours in the dark. Each must process the stages of grief.
Soon come the claims adjusters, feigning sympathy, lulling the parents into complacency, and giving the impression that they will do everything they can to make things right. They are well trained to insinuate themselves into the confidence of grieving families for the calculated purpose of minimizing the cost for the trucking company and its insurers. Think of wolves in sheep's clothing. No matter what they say, they are not on the side of the victims. They are there with one purpose, to save the company as much money as humanly possible.
And then, unfortunately, are the members of my profession who ignore ethics rules against solicitation. These are the proverbial "ambulance chasers," who descend upon the families, either in person or through agents often called "runners" or "cappers." Defying both State Bar of Georgia ethics rules and Georgia criminal law, they solicit cases from grief-stricken families.
Over the years, clients and others have told me stories of being approached even in hospitals and funeral homes, in the first hours or days after a tragedy, by people who represent themselves as "counselors," "investigators" and even clergy, who slip into conversation a question about whether they have a lawyer yet.
One client whose wife was killed when their car was run over by a tractor-trailer on an Interstate highway, and whose son called me to meet with him at home the week after the funeral, showed me a thick FedEx package he had received from a law firm in Washington, D.C., that apparently solicits victims of major catastrophes all over the country.
Georgia Rule of Professional Conduct 7.3 specifically prohibits lawyers from soliciting employment through direct personal contact or through live telephone contact, with a nonlawyer who has not sought advice regarding employment of a lawyer. It also prohibits written communication to a prospective client in cases of personal injury or wrongful death within the first 30 days after the accident or disaster.
This bar ethics rule further provides that a lawyer shall not compensate anyone for recommending the lawyer's employment except under a bona fide lawyer referral service approved by the bar. Thus, paying someone else to solicit cases is a disbarment offense.
While the maximum penalty for a violation of Rule 7.3 is disbarment, it is difficult for the bar's general counsel to prosecute those cases because there are seldom people motivated to both file grievances and show up to testify. Even out-of-state lawyers are theoretically subject to reciprocal discipline in their home state for violation of these rules in Georgia if the bar has solid evidence upon which to prosecute the case.
Respectable plaintiffs' personal injury lawyers across the country have almost universally condemned this insidious practice of solicitation of cases through runners. In some states there have been damage suits against lawyers who use runners on the basis of violation of Fair Business Practices statutes.
Bottom-feeding, ambulance-chasing lawyers who are not concerned about their professional reputation have felt free to violate this rule. Because many people who are solicited hang up immediately or fail to recognize a problem, these cases are difficult to prosecute without a sting investigation, which the bar's general counsel has not felt equipped to do.
One of my great frustrations as state bar president in 2011-12 was the difficulty of aggressively prosecuting such violations. Lacking law enforcement resources, the general counsel's office was reluctant to organize the kind of sting investigation I knew, as a former prosecutor, could be effective.
I appointed a committee to organize training for state court solicitors, law enforcement and hospital attorneys on how to carry out these investigations. Included were former FBI agents, state court solicitors and hospital counsel.
While we passed as much of a strengthening of lawyer advertising rules as would meet constitutional muster, which the Supreme Court later approved, we were unable to get overburdened law enforcement agencies or prosecutors interested in making cases against runners.
The state bar needs to enforce the ethical rules and uphold virtue in the legal profession, but it cannot make strong disciplinary cases against such unethical lawyers without evidence required to support a prosecution. Anyone who receives such a solicitation should get the name and number of the caller and then immediately call the State Bar of Georgia Office of General Counsel at 404-527-8720, and offer to assist in investigation and file a grievance for violation of Rule 7.3.
Sting investigations could be undertaken by law enforcement, but they are reluctant to commit resources when the criminal offense is only a misdemeanor. I eventually came to the conclusion that the only way to get meaningful enforcement is to make it a felony.
In 2014, the Georgia General Assembly passed legislation to do just that for second or subsequent violations, with penalties to include up to 10 years in prison and a fine of up to $100,000. However, its weakness is that law enforcement agencies are seldom motivated to initiate effective investigations for a misdemeanor first offense, so there is unlikely to ever be a second offense to prosecute.
I hope that the families affected by last week's tragedy will reject those who solicit them in violation of the state bar and Georgia criminal law prohibitions, do their own due diligence research, and select qualified lawyers to seek justice.
Ken Shigley of Atlanta is a past president of the State Bar of Georgia, a certified civil trial attorney of the National Board of Trial Advocacy, lead author of "Georgia Law of Torts: Trial Preparation and Practice" (Thomson Reuters West, 2010-15), and chairman-elect of the Motor Vehicle Collision, Highway and Premises Liability Section of the American Association for Justice.
May 17, 2011. Ken Shigley appointed by Governor Deal to Special Council on Criminal Justice Reform.
June 19, 2010. Ken Shigley installed as President-Elect of State Bar of Georgia, to serve as President in 2011-12.
May 5, 2010. Ken Shigley elected without opposition as President-Elect of State Bar of Georgia.
April 2010. Thomson West publishes Ken Shigley's book, Georgia Law of Torts: Trial Preparation & Practice.
January 9, 2010, Atlanta. Ken Shigley becomes sole nominee for President-Elect of State Bar of Georgia.
February 2010. Trial magazine publishes article by Ken Shigley, based upon paper prepared for seminar presentation in San Francisco in July 2009.
July 30, 2009, Amelia Island, Florida. Ken Shigley speaks to Georgia Trial Lawyers Association Auto Torts Seminar on litigation of trucking accident cases.
July 25, 2009, San Francisco, California. Ken Shigley speaks to Interstate Trucking Litigation Group of American Association for Justice on what to do when a defendant trucking company becomes insolvent during litigation.
February 21, 2009. Las Vegas, Nevada. Ken Shigley speaks to American Association for Justice Interstate Trucking Litigation Group seminar in on topic of selecting a theme for trial.
January 10, 2009. Ken Shigley becomes sole nominee for Treasurer of the State Bar of Georgia for 2009-10.
October 31, 2008. Announcement that Ken Shigley will be candidate for Treasurer of the State Bar of Georgia in 2009.
October 27, 2008. Announcement that Ken Shigley has become of counsel with the law firm of Chambers, Aholt & Richard, LLP.
October 26, 2008. Ken Shigley speaks on "Insurance in Trucking Cases" at national continuing legal education program of the Association of Interstate Trucking Lawyers of America, in Atlanta.
October 22, 2008. Ken Shigley wins $1,250,000 jury verdict representing passenger in single car wreck, despite defense that client had assumed risk of injury by getting car with defendant driver after they had been drinking and consuming controlled substances together.
October 4, 2008. Chicago, Illinois. Ken Shigley speaks on "Insurance in Truckings Cases" at Advanced Trucking Litigation seminar, sponsored by Interstate Trucking Litigation Group of the American Association for Justice.
September 2008. Ken Shigley appointed chair of new State Bar Electronic Court Filing Committee.
July 2008. Ken Shigley appointed to Georgia Courts Automation Commission.
July 12, 2008. Ken Shigley speaks on punitive damages and attorney fee awards in trucking litigation at national seminar of Association for Interstate Trucking Lawyers of America, in St. Louis, Mo.
June 7, 2008. Ken Shigley installed as Secretary of State Bar of Georgia, after carrying 157 counties in contested statewide bar election.
February 9, 2008. Ken Shigley speaks on trucking litigation issues involving the National Highway Transportation Safety Board at American Association for Justice trucking litigation seminar in New Orleans.
On January 18, 2008, the Fulton County Daily Report published Ken Shigley's analysis of the unintended consequences of a sales tax on legal services, an earlier draft of which appeared in this blog a couple of days ago. It must have been a slow news day because they gave me a full page.
At the State Bar of Georgia Midyear Meeting on January 12, 2008, Ken Shigley was nominated as a candidate for Secretary. Ballots will be mailed to all active members of the State Bar on April 1st.
At the 2007 Annual Meeting of the State Bar of Georgia, Ken Shigley was elected as one of six at-large members of the 14-member Executive Committee of the 38,000 member governing body of the legal profession in Georgia.
The Spring/Summer 2006 issue of Verdict magazine, a publication of the Georgia Trial Lawyers Association, includes an article by Ken Shigley titled "Treating Physicians' Testimony Under Daubert." This deals with admissibility of physicians' expert testimony under the current rules on expert witnesses.
Ken Shigley served as chairman of the Southeastern Motor Carrier Liability Institute, sponsored by the Georgia, Alabama, Tennessee and North Carolina Trial Lawyers Associations. This two-day continuing legal education on November 10 and 11, 2005, was an overview of the law and technology involved in large commercial motor vehicle crash cases.
Atlanta Magazine designated Ken Shigley as a “Georgia SuperLawyer" in its March 2005 issue.
Georgia Trend Magazine included Ken Shigley in its listing of "Legal Elite: Georgia's Most Effective Lawyers," in the personal injury practice area, in its December 2004 issue. A trial lawyer with over 100 jury trials completed, he is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, former chair of the Tort & Insurance Practice Section of the State Bar of Georgia, and listed in the Bar Register of Preeminent Lawyers in the personal injury and products liability practice areas.
Confidential case settlements in recent months include a multiple seven-figure resolution with a major auto manufacturer arising from defective design of an electronic interlock in the antilock braking system, and multiple six-figure settlements with an international building supply company whose cement mixer truck collided with the rear of a carpenter's pickup truck driving a load of lumber through the pickup cab and with a "big box" retailer that knew the fixtures it used in thousands of stores presented a tripping hazard. We also recently won summary judgment for a dentist on a hotly contested disability insurance claim.
In October 19, 2005, Ken Shigley was program chair of the annual Georgia Personal Injury Practice seminar sponsored by the Institute for Continuing Legal Education in Georgia. This was his third consecutive year chairing this program.
On May 22, 2018, former State Bar of Georgia president Ken Shigley will be a candidate for election to the Georgia Court of Appeals. The only other candidate is Ken Hodges, a former Dougherty County District Attorney. Ken Hodges was the Democratic Party nominee for Attorney General in 2010.