plaintiff's personal injury
TRANSCRIPT
CO-SPONSORS:General Practice & Trial Law Section, State Bar of Georgia
Institute of Continuing Legal Education in Georgia
PLAINTIFF’S PERSONAL INJURY
Program Materials 2013
Printed byInstitute of Continuing Legal Education in Georgia • P.O. Box 1885 • Athens, Georgia 30603-1885
Publication No.138211
The Institute of Continuing Legal Education in Georgia (ICLE) is the not-for-profi t educational service of the State Bar of Georgia and is a consortium of the Bar and the Law Schools of the Universities of Georgia, Emory, Mercer, Georgia State and John Marshall. It is fully self-supporting and receives all of its income from tuition charges and sale of publications. ICLE exists solely to serve the educational needs of practicing lawyers with any surplus revenues being devoted entirely to the improvement of CLE products and services.
Copyright © 2013 by the Institute of Continuing Legal Education in Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.
The Institute of Continuing Legal Education in Georgia’s publications are intended to provide current and accurate information on designated subject matter. They are offered as an aid to maintaining professional competence with the understanding that the publisher is not rendering legal, accounting or other professional advice. Attorneys using ICLE publications should also research original and current sources of authority.
ICLE gratefully acknowledges the efforts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily refl ect the opinions of the Institute of Continuing Legal Education in Georgia, its offi cers or employees.
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FOREWORD
The Institute is especially grateful to our outstanding Seminar Chairperson, Douglas C. Dumont, for providing the necessary leadership, organization and supervision that has brought this program into a reality. Indeed a debt of gratitude is particularly due our articulate and knowledgeable faculty without whose untiring efforts and dedication in the preparation of papers and in appearing on the program as speakers, this program would not have been possible. Their names are listed on the program at page iv of this book and their contributions to the success of this seminar are immeasurable.
I would be remiss if I did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us hope your attendance will be most benefi cial as well as enjoyable. Your comments and suggestions are always welcome.
March, 2013 Lawrence F. Jones Executive Director Institute of Continuing Legal Education in Georgia
ivPROGRAM
8:15 REGISTRATION AND CONTINENTAL BREAKFAST (All attendees must check in upon arrival. A jacket or sweater is recommended.) 8:55 INTRODUCTION AND PROGRAM OVERVIEW Douglas C. Dumont
9:00 DEMONSTRATING DEMONSTRATIVE EVIDENCE Steve R. Thornton, Thornton Law Firm, P.C., Atlanta
9:30 CAN I SUE THE GOVERNMENT: ISSUE SPOTTING POTENTIAL CLAIMS AGAINST GEORGIA MUNICIPALITIES AND COUNTIES Steven Salcedo, Law Offi ces of Steven Salcedo, LLC, Decatur
10:00 WORKER’S COMP AND COORDINATING THIRD PARTY CLAIMS Laura Reis, Reis Law, LLC, Atlanta 10:30 BREAK
10:45 THE NEW GEORGIA EVIDENCE CODE Parag Shah, The Shah Law Firm, Atlanta
11:20 HOW TO BE ETHICAL AND AVOID MALPRACTICE David N. Lefkowitz, The Lefkowitz Firm, LLC, Atlanta 12:00 LUNCH (Included in registration fee)
1:00 WAYS TO MAXIMIZE YOUR RECOVERY – BAD FAITH AND ABUSIVE LITIGATION Charlotte K. Perrell, Perrell & Wright, LLC, Atlanta
1:35 CASE SELECTION – A STOOL MUST HAVE 3 LEGS TO STAND Douglas C. Dumont
2:10 HOW TO STRIKE A BAD-ASS JURY Jenny E. Jensen, Jones Jensen & Harris, Norcross
2:45 BREAK
3:00 5 WAYS PLAINTIFFS TORPEDO THEIR CASE Douglas K. Burrell, Drew, Eckl & Farnham, Atlanta 3:30 REPRESENTING VICTIMS OF CRIMINAL ACTS Andy T. Rogers, Deitch & Rogers, LLC, Atlanta
4:00 THIRD PARTY CLAIMS – Everyone WINS! Michael J. Warshauer, Warshauer Law Group, P.C., Atlanta
4:30 ADJOURN
Presiding: Douglas C. Dumont, Program Chair, Warshauer Law Group, P.C., Atlanta
Table of Contents
v
Page Chapter
Foreword .................................................................................................................................... iii
Program Schedule ..................................................................................................................... iv
Creating and Presenting Effective Demonstrative Evidence at Trial ............................. 1–8 01 Steven R. Thornton
Workers Compensation and theCoordination of Third Party Claims .................................................................................... 1–7 02 Laura C. Reis
The New Georgia Evidence CodeNumbers a Plaintiff’s Personal Injury Attorney Should Know .................................... 1–76 03 Parag Y. Shah
How to Be Ethical and Avoid Malpractice ....................................................................... 1–14 04 David N. Lefkowitz
Making Your Client Whole:Getting Your Fees for Bad Faith and Abusive Litigation ............................................... 1–13 05 Charlotte B. Perrell
Identifying Valid Claims –It Takes All Three Legs for the Stool to Stand .................................................................... 1–8 06 Douglas C. Dumont
How to Strike a Friendly JuryVoir Dire and Jury Selection ............................................................................................... 1–14 07 Jenny E. Jensen
Five Ways Plaintiffs Torpedo Their Cases .......................................................................... 1–5 08 Douglas K. Burrell
Representing Victims of Criminal ActsApportionment in 2013 ....................................................................................................... 1–25 09 Andrew T. Rogers
Maximizing Recovery Beyond Workers’ Compensation ............................................... 1–28 10 Michael J. Warshauer
Appendix:The Institute of Continuing Legal Education in Georgia ..................................................... 1ICLE Information ...................................................................................................................... 4Errata Sheet ................................................................................................................................. 5
CREATING AND PRESENTING
EFFECTIVE DEMONSTRATIVE EVIDENCE AT TRIAL
Steven R. ThorntonThornton Law Firm, P.C.
Atlanta, Georgia
PLAINTIFF’S PERSONAL INJURY
CREATING AND PRESENTATING EFFECTIVE
DEMONSTRATIVE EVIDENCE AT TRIAL
ICLE Seminar: Plaintiff’s Personal Injury March 29, 2013
Steven R. Thornton Thornton Law Firm, P.C.
Two Ravinia Drive, Suite 500 Atlanta, Georgia 30346
678.855.7148 [email protected]
TABLE OF CONTENTS
I. Why Should We Use Demonstrative Evidence At Trial? ……………….….. 1
II. Legal Basis For Using Demonstrative Evidence At Trial ………………..…. 2
III. Creating Effective Demonstrative Evidence ……………………………………. 2
A. Create ………………………………..…………………………………………..... 3 B. Design ………………………………..…………………………………………..... 3 C. Test ..……..…………………………..…………………………………………...... 5 D. Cost ……….…………………………..…………………………………………..... 5 E. Equipment …..……………………..…………………………………………..... 6
IV. Examples ……………………………………………………………………………………. 6
A. Purely Demonstrative Evidence ……………………………………….…. 6 B. Admissible Evidence ……………………………………………………….…. 7
V. Ways To Present Demonstrative Evidence …………………………………….. 7
A. Sketch Pad ………………………………………………………………………... 7 B. Trial Boards……………………………………………………………………….. 8 C. PowerPoint/Keynote………………………………………………………..… 8 D. ELMO Document Camera…………………………………………………... 8
VI. Conclusion …………………………………………………………………………………. 8
Chapter 1 i
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CREATING AND PRESENTATING EFFECTIVE DEMONSTRATIVE EVIDENCE AT TRIAL
Steven R. Thornton Thornton Law Firm Two Ravinia Drive
Suite 500 Atlanta, GA 30346
678-855-7148 [email protected]
I. WHY SHOULD WE USE DEMONSTRATIVE EVIDENCE AT TRIAL?
Trial lawyers almost universally agree that quality demonstrative evidence is
essential to a successful jury trial. Why is this concept accepted so widely? I believe
there are two reasons: (1) Demonstrative evidence helps jurors learn; and (2)
Demonstrative evidence keeps jurors interested.
After a long period of discovery and preparation, we bring our cases to trial
before a group of strangers who know nothing about our case and who probably do not
want to be serving on the jury. Our job is to teach and motivate. We must present our
evidence to the jury, explain the evidence to the jury, and teach the jury why the
evidence is important to our case. Many studies have shown that people remember
information better and can recall it better when it is presented both visually
and verbally. This is often referred to as “visual learning.” As trial lawyers, we must
become “visual teachers.”
Keeping the jury focused on our issues is also important. We want the jury to be
captivated with our story and our case. Getting and keeping the jury’s complete
attention at trial is extremely difficult. Interesting and relevant demonstrative evidence
can help you do this.
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II. LEGAL BASIS FOR USING DEMONSTRATIVE EVIDENCE AT TRIAL
The basis for using demonstrative evidence at trial is found in O.C.G.A. § 9-10-
183, which provides:
In the trial of any civil action, counsel for either party shall be permitted to use a blackboard and models or similar devices in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury, provided that counsel shall not in writing present any argument that could not properly be made orally.
It has been my experience that demonstrative evidence is commonly and
extensively used by trial lawyers on both the plaintiff and defense sides. Because of this,
judges are accustomed to seeing demonstrative evidence and visual exhibits. To
minimize objections in front of the jury, I often show defense counsel my visual exhibits
before trial and ask if they plan to object; usually there is no objection.
III. CREATING EFFECTIVE DEMONSTRATIVE EVIDENCE
Many of us do not have natural creative and artistic talents. But, we all know the
evidence in our cases backwards and forwards, and therefore we know what the jury
needs to see to learn about our case. Once we know what the jury needs to see, we can
create the visuals to help them learn.
Many lawyers wait until shortly before trial to prepare their exhibits. Yet,
compelling exhibits take time to create. I suggest starting to develope visuals during
discovery, when documents are obtained and witnesses are deposed. This gives you
time to revise the visuals over and over before they are finalized just before trial. The
time and energy devoted to creating exhibits is time well spent.
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A. Create
The creative process requires focus without distractions. One of the most
important things you can do when creating visuals is to give yourself time to think in a
location where you can relax. You do not want to feel rushed, distracted, or preoccupied
– these things kill creativity. So get away from your computer, your phone, your email,
and go to the place where you can think without interruption. Are you there? Alright,
let’s think and create.
Wait – I said let’s get away from your computer. That means we will not go to
PowerPoint/Keynote right now. Instead, grab a pen and pad of paper, or bring a sketch
pad or whiteboard. We are going to sketch out ideas.
First, identify the main core points you must prove to win your case. After that,
break each core issue down into smaller subjects that can be established one by one.
Once that is done, we can begin the brainstorming process, where we will explore
ideas, make lists, sketch out ideas and concepts on a large scale, and step back to see if
they flow together logically. Stepping back and looking at all the ideas makes it easier to
see the big picture. Then you can identify what is essential to your core message and
what can be removed.
The process described above is referred to as “Ready – Fire – Aim.” Ready is
preparing to create in an atmosphere that allows open thought without distraction. Fire
is the brainstorming process. Aim is cutting the information you don’t need.
B. Design
For me, Design is the most important part of the creative process. If your visual
contains the needed information but the exhibit is designed poorly, the exhibit is not
Chapter 1 3 of 8
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likely to be effective. We must present the information in a format that jurors will
understand. Proper design is the way to do that.
If I could use only one word to summarize what I believe is essential for an
effective visual, it would be this word: Simple. A Simple visual is one that has been
designed for clarity that conveys the essence of an issue, and nothing more. “Simple” in
this context does not mean simplistic, dumbed-down, deceptive/misleading, or
oversimplified. Simple means clear, direct, and intelligent.
Simplicity is powerful, yet it is neither simple nor easy to achieve. So how do we
design Simple visuals for trial? By carefully reducing the nonessential information,
while keeping in mind the concepts of subtelty, grace, and understated elegance.
Unless you have superior graphic design talent, I recommend hiring a
professional graphic designer to assist with preparing your visuals. Here are a few
issues to consider when designing visuals:
• “When in doubt, leave it out.” Remove all nonessential information.
Remove visual clutter. Err on the side of less visual information rather
than more.
• When possible, use Pictures rather than words. People remember Pictures
better than words.
• Use Bullet Points rarely, and only if you must.
• Empty Space is elegant and powerful.
• Place text within images, rather than next to an image.
• Strive for Balance and Alignment in a visual.
• Repeat selected elements throughout visuals: font, color, images.
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• Match Color with the message being conveyed.
• In a PowerPoint/Keynote, avoid animated slide transitions and 3-D
effects.
• Avoid Clip Art or animated photos. Find quality photos instead.
C. Test
Once you have created and designed your visuals, you should test them to see if
they convey the desired message to the viewer. If you do not test your visuals, you may
inadventely introduce an exhibit to the jury that conveys a message that supports your
opponent’s case. This is particularly true with photographs and diagrams.
Testing is easy to do. Simply show your visuals to others and ask what they think.
I recommend testing visuals for content, message, design, and color. Usually you can
improve your visuals by receiving feedback from those not familiar with your case.
D. Cost
Compelling exhibits can be extremely costly, surprisingly inexpensive, or
somewhere in the middle. Trial board enlargements of pdf documents typically cost
$45-$55 for a 30 x 40 board. Graphic design fees and color can run the cost to over
$125 per board, depending on the complexity of the image.
Medical illustrations often cost $800 - $1,200 apiece, but this is a good deal if the
case has a value of over $100,000. For smaller cases, one could use the plaintiff’s X-rays
or simply enlarge an illustration out of a medical text.
PowerPoint/Keynote presentations are inexpensive. Assuming you have the
software and the images you want to display (photographs, deposition testimony),
PowerPoint/Keynote presentations cost little to nothing to create.
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Video accident re-creations can cost from $10,000 to upwards of $50,000.
E. Equipment
You will need a scanner and Adobe Acrobat software to convert documents into
pdf format. Scanners are not overly expensive; mine cost $450. Adobe Acrobat came
with the scanner I bought, but if you have to purchase Adobe Acrobat separately, it costs
around $150-$200.
For quality photographs, digital cameras are the best and not overly expensive.
To display your visuals to the jury in the courtroom, you may need the following
items:
• Laptop with DVD player and PowerPoint/Keynote software • Easel with sketch pad and markers • Projector • Screen • Table for projector • Extension cords • Power strip • Speakers for computer • Presentation easels for trial boards
IV. EXAMPLES
A. Purely Demonstrative Evidence
1. Photographs / Charts / Diagrams
2. Medical Illustrations / X-rays
3. Video of Accident Re-creation or Product Testing
4. Critical Deposition Testimony
5. “Day-in-the-Life” videos
6. Models
7. Excerpts from Defendant’s Web Site
Chapter 1 6 of 8
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8. Jury Instructions
9. Verdict Form
B. Admissible Evidence
1. Photographs
2. Guilty Plea to Traffic Ticket
3. Defendant’s Safety/Security/Training Manuals
4. Medical Bills
5. Lost Income Documentation
6. Product Specifications of Subject Product
7. Product Specifications of Competitor Product
8. Industry Standards – ANSI, ASTM
9. Evidence of Other Similar Incidents
10. Building and Housing Codes
11. Life Care Plan Summary
V. WAYS TO PRESENT DEMONSTRATIVE EVIDENCE
A. Sketch Pad
When a witness testifies to a critical fact, write it on a sketch pad in front of the
jury. When you refer to that point in your closing argument, the jury will remember that
the witness testified to the point because they saw you write it down when it happened.
I never go to trial without a sketch pad.
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B. Trial Boards
The low-tech approach of trial boards is one of the most effective methods for
visuals. Trial boards are easy to handle in front of the jury and there is no risk of
equipment malfunction.
C. PowerPoint/Keynote
Multi-media presentations can be effective at trial. All trial lawyers should know
how to create a PowerPoint/Keynote presentation, and how to operate the presentation
themselves.
Make sure to “focus group” the presentation before trial for effectiveness, and to
test the equipment to avoid a malfunction during trial.
D. ELMO Document Camera
I love using an ELMO document camera in the courtroom. Once the ELMO and
screens are in place, all you need to do is put the document on the ELMO and it will
display on the screens. This is most useful when a witness is testifying; by hearing the
witness testify and seeing the document at the same time, the jury will remember the
exhibit better and be able to recall it when deliberating. ELMOs are expensive and not
typically provided by courts.
VI. CONCLUSION
Almost all trial lawyers today prepare their cases with demonstrative exhibits and
visual aids. Carefully planned and designed visuals can help you teach your essential
concepts to the jury. In today’s legal setting, with all of the technological advances
available to lawyers and expected by jurors, demonstrative evidence is practically a
requirement.
Chapter 1 8 of 8
WORKERS COMPENSATION AND THE
COORDINATION OF THIRD PARTY CLAIMS
Laura C. ReisReisLaw, LLC
Atlanta, Georgia
PLAINTIFF’S PERSONAL INJURY
Workers Compensation and the Coordination of Third Party Claims
Plaintiff’s Personal Injury ICLE March 29, 2013 GBP Atlanta Laura C. Reis, ReisLaw, LLC
Determining Your Role
Chapter 2 1 of 7
Workers Compensation Benefits
-Weekly Income Benefits (TTD)
-Medical Treatment per Fee Schedule
-Authorized Body Parts
-Authorized Physician
-Mileage/Transportation, RX, Durable Medical Equipment, Rehab Nurse
-Independent Medical Evaluation
Chapter 2 2 of 7
The Workers’ Comp Lion Pit
• Case nurse managers – attending appointments – writing progress reports
• Claims adjusters involved from day one • Surveillance • Negative Medical Evidence • Workers’ Comp Panel of Physicians • Light Duty Job Releases • ICMS and Online Claim Reporting • Renegade Claimants
The Lion Taming Act
• Be your own case nurse manager
• Take control of the medical
• Negotiate early and often • Protect the (competing?)
claims • Communicate with your
client
Chapter 2 3 of 7
Screening the Case
• Exclusive Remedy / Borrowed Servant Bar • Premises Liability • Medical Negligence • Defective and Dangerous Products/
Implants • Employment Discrimination, Wrongful
Termination, Wage and Hour • SSDI • Whistleblower Claims • Insurance Coverage/Bad Faith/Errors and
Omissions
The Elements of a Compensable Workers’ Compensation Claim
• 1. Jurisdiction • 2. Venue • 3. Three or more employees • 4. Subject to the Georgia Workers' Compensation Act • 5. Notice of Accident • 6 Accident arose out of Claimant's employment for this Employer
(scope) • 7. Accident occurred during the course of Claimant's employment for
this Employer • 8. Statute of Limitations
– Claim is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury. The claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.
• 9. Injury • 10. Disability
Chapter 2 4 of 7
WORKERS’ COMPENSATION
TERMS • SBWC (State Board of Workers’ Compensation)
• TTD (Temporary Total Disability) • TPD (Temporary Partial Disability) • PPD (Permanent Partial Disability) • AWW (Average Weekly Wage) • CR (Compensation Rate) • ATP (Authorized Treating Physician) • IME (Independent Medical Exam) • ICMS (Integrated Claims Management System) • ALJ (Administrative Law Judge)
COMMON BOARD FORMS • WC-1 -Employer's First Report of Injury
• WC-2 -Notice of Payment or Suspension of Benefits • WC-3 -Notice to Controvert • WC-4 -Case Progress Report
• WC-6 -Wage Statement • WC-12 -Request for Copy of Board Records
• WC-14 -Notice of Claim/Request for Hearing/Request for Mediation • WC-14a -Request to Amend a Form WC-14 • WC-15 -Attorney Certification for No-Liability Stipulations
• WC-100 -Request for Settlement Mediation • WC-102 -Request for Documents to Parties
• WC-102b -Notice of Representation • WC-102c -Attorney Leave of Absence • WC-102d -Motion/Objection to Motion
• WC-104 -Notice to Employee of Medical Release to Return to Work with Restrictions or Limitations • WC-108a -Attorney Fee Approval • WC-108b -Attorney Withdrawal/Lien
• WC-200a -Change of Physician/Additional Treatment by Consent • WC-200b -Request/Objection for Change of Physician/Additional Treatment
• WC-205 -Request for Authorization of Treatment or Testing by Authorized Medical Provider • WC-206 -Notice of Intent to Become a Party at Interest • WC-207 -Authorization and Consent to Release Information
• WC-226a -Petition for Appointment of Temporary Guardianship of Minor(s) • WC-226b -Petition for Appointment of Temporary Guardianship of Legally Incapacitated Adult
• WC-240 -Notice to Employee of Offer of Suitable Employment • WC-240a -Job Analysis • WC-243 -Credit
• WC-244 -Notice of Intent to Become a Party of Interest • WC-262 -Wage Documentation of Temporary Partial Disability Payments
Chapter 2 5 of 7
Litigation Strategies
• Pre-suit witness investigation, evidence preservation and affidavits
• Medical Record and Employment File availability
• Requesting a workers’ compensation hearing
• Targeted discovery and depositions
• Business records
• Administrative Law Judges vs. Trial By Jury
Settlement Considerations
• disclosures in depositions and mediations
• reserving deposition objections/waiving signature
• disclosure of additional claims • subrogation rights and
Georgia’s made whole doctrine • language/legalese in the
Workers’ Compensation Stipulation and Agreement
• The Release • SBWC Approval
Chapter 2 6 of 7
Chapter 2 7 of 7
THE NEW GEORGIA EVIDENCE CODENUMBERS A PLAINTIFF’S PERSONAL INJURY ATTORNEY SHOULD KNOW
Parag Y. ShahShah Law FirmAtlanta, Georgia
PLAINTIFF’S PERSONAL INJURY
2
TABLE OF CONTENTS Numbers to Know……………………………………………………………………………………... 3 Appendix (The Code) ………………………………………………………………………………… 8 Evidence Statutes Correlating with Numbers to Know
Chapter 3 i
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NUMBERS TO KNOW PRELIMINARY 103 Object – Specific Grounds – Proffer – Once Ruling, Don’t Renew 104 Motions in Limine – Notice – Preponderance JUDICIAL NOTICE 201(g)(1) Judicial Notice Google Maps (distance, intersection, locations) US v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012)
US v. Sessa, 2011 WL256330 (EDNY 2011) RELEVANCE 402 Relevance 403 Probative value SUBSTANTIALLY OUTWEIGHED Prejudicial effect 404(b) Propensity except for certain purposes 405 Character by Reputation or Opinion 406 Habit or Routine – Organization SPECIFIC TO CIVIL 407 Subsequent Remedial Measures inadmissible except products
liability or another purpose, if controverted Practice Tip: Request for Admissions on these
exceptions 408 Offers to Compromise AND Settle Practice Tip: Demand Letters 409 Offering or Promising to Pay medical bills or similar expenses
inadmissible to prove liability 410 Plea of Nolo Contendere Not Admissible
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411 Liability Insurance inadmissible, except for certain situations AND inverse of 403
Practice Tip: Request for Admissions on these exceptions
415 Prior sexual assault/ child molestation in civil cases 416 Apology of health care providers is inadmissible PRIVILEGES 509 Privileges for Agents WITNESSES 608 Credibility of Witnesses 609 Impeachment by Conviction Witness = 403 Accused = Probative value OUTWEIGHS Prejudicial Effect False Statement admitted regardless of punishment
10 Years – Probative value supported by facts and circumstances substantially outweighs prejudicial effect
Nolo inadmissible 612 Refreshed Recollection 613 Prior Statement of Witness – Not shown or contents disclosed to witness 621 Disproving Facts Practice Tip: Getting in Nolo Pleas, Misdemeanors, etc. 622 Witness’s Feelings and Relationship to Parties EXPERTS 702 – 705 Expert Qualifications, Bases of Opinions, Ultimate Issue, Underlying Fact HEARSAY NO RES GESTAE 801(1) Prior Statement
Chapter 3 2 of 76
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801(2)(D) Admission by Party-Opponent – Agent or Employee – (1) Within
scope of agency or employment; (2) Made during existence of the relationship
802 Hearsay Rule – Object otherwise Waived 803 Availability of Declarant Immaterial
803(5) Recorded Recollection – (i.e. Affidavit)
803(6) Business Records – 902(11); (12) – (i.e. Medical Reports)
803(7) Absence of Records – (i.e. Kroger)
803(8) Public Records
Police Reports in Civil Cases • “Matters observed” by a police officer and put into a report pursuant to duty fall under subsection (B) of § 24-8-803(8). See, e.g., Jonas v. Isuzu Motors Ltd., 210 F.Supp.2d 1373, 1378 (M.D. Ga. 2002). “Matters observed” includes statements the officer heard and recorded from witnesses, though the witness's statements are not admissible unless they qualify for some hearsay exception. See, U.S. v. Sallins, 993 F.2d 344, 347 (3d Cir. 1993); U.S. v. De Peri, 778 F.2d 963, 977 (3d Cir. 1985). See also, U.S. v. Taylor, 462 F.3d 1023 (8th Cir. 2006) (police report inadmissible to prove that gun was stolen where the citizen's report to the police fell under no hearsay exception). • “Factual findings” in police reports are rarely admitted under subsection (C) of 24-8-803(8) since such reports typically are rather cursory. However, specific findings based on a thorough investigation and not simply the statements of witnesses may be admissible, though only in civil cases. See, e.g., Hendrix v. Evenflo Co., Inc., 255 F.R.D. 568, 580 (N.D.Fla. 2009). See also, Mintah v. Arms, 251 Ga. App. 572, 555 S.E.2d 466 (2001) (“Accident reports filed with the Department of Motor Vehicle Safety shall not be referred to or admitted as evidence in any civil damages trial”). O.C.G.A. § 40-9-41. 804 Declarant Unavailable 804(b)(2) Dying Declaration 805 Hearsay within Hearsay SPECIFIC TO CIVIL 821 Admissions in Pleadings
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826 Medical Narrative AUTHENTICATION 901 What it purports to be 902 Self-Authentication 902(7) Emails 902(8) Notary
902(11); (12) Certified Records w/ Business Records Exception and Notice MEDICAL RECORDS
(1) 902(11); (12) (2) 403 (3) 803(6) (also, note party opponent) (4) Chapter 7 – Daubert (5) Continuing Witness Rule – does not go back to jury SPECIFIC TO CIVIL
921 Competent Witness to Identify Medical Bills 924 DPS or DDS records (i.e. Drivers License) (see also in relation to 404(b)) CONTENTS OF WRITINGS (i.e. BEST EVIDENCE) 1002 Not just writings, but also recordings and photographs 1003 Duplicates 1004 Lost SPECIFIC TO CIVIL 1007 Proving contents by deposition or admission without accounting for
nonproduction of original MISCELLANEOUS 24-13-27 Notice to Produce
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24-14-3 Preponderance 24-14-22 Presumption arising from failure to produce evidence 24-14-23 Presumption arising from failure to answer letter 24-14-44; 45 Mortality Tables
Chapter 3 5 of 76
2013 EDITION
THE CODE
A Reference Guide to Georgia Rules of Evidence
Parag Y. Shah
Chapter 3 6 of 76
© Copyright 2012, Parag Y. ShahElizabeth Books, LLC.
All Rights Reserved.
No part of this book may be reproduced, stored in a retrieval system, or transmitted by any
means, electronic, mechanical, photocopying, recording, or otherwise, without written
permission from the author.
ISBN 978-0-9820410-6-2 0-9820410-6-3
www.theGAcode.com
Chapter 3 7 of 76
24-1-103 5
RULINGS ON EVIDENCE
(a) Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and: (1) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by an offer of proof or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding any evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve such claim of error for appeal. (b) The court shall accord the parties adequate opportunity to state grounds for objections and present offers of proof. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The court may direct the making of an offer of proof in question and answer form. (c) Jury proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, including, but not limited to, making statements or offers of proof or asking questions in the hearing of the jury. (d) Nothing in this section shall preclude a court from taking notice of plain errors affecting substantial rights although such errors were not brought to the attention of the court. OCGA 24-1-103.
RULINGS & ADMISSIBILITY
Chapter 3 8 of 76
24-1-1046
PRELIMINARY QUESTIONS
(a) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b) of this section. In making its determination, the court shall not be bound by the rules of evidence except those with respect to privileges. Preliminary questions shall be resolved by a preponderance of the evidence standard. (b) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be conducted out of the hearing of the jury when the interests of justice require or when an accused is a witness and requests a hearing outside the presence of the jury. (d) The accused shall not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the proceeding. (e) This Code section shall not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. OCGA 24-1-104.
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24-2-20110
ADJUDICATIVE FACTS
(a) This section governs only judicial notice of adjudicative facts. (b) A judicially noticed fact shall be a fact which is not subject to reasonable dispute in that it is either: (1) Generally known within the territorial jurisdiction of the court; or (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (c) A court may take judicial notice, whether or not requested by a party. (d) A court shall take judicial notice if requested by a party and provided with the necessary information. (e) A party shall be entitled, upon timely request, to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, such request may be made after judicial notice has been taken. (f) Judicial notice may be taken at any stage of the proceeding. (g)(1) In a civil proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. (2) In a criminal proceeding, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. OCGA 24-2-201.
GENERAL PROVISIONS
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24-4-402 27
RELEVANT EVIDENCE GENERALLY
All relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible. OCGA 24-4-402.
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24-4-40328
EXCLUSION OF RELEVANT EVIDENCE
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. OCGA 24-4-403.
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CHARACTER EVIDENCE
(a) Evidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion, except for: (1) Evidence of a pertinent trait of character offered by an accused or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under paragraph (2) of this subsection, evidence of the same trait of character of the accused offered by the prosecution; (2) Subject to the limitations imposed by 24-4-412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same; or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; or (3) Evidence of the character of a witness, as provided in 24-6-607, 24-6-608, and 24-6-609. (b) Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the
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evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim. OCGA 24-4-404.
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24-4-405 31
PROVING CHARACTER
(a) In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion. (b) In proceedings in which character or a trait of character of a person is an essential element of a charge, claim, or defense or when an accused testifies to his or her own character, proof may also be made of specific instances of that person’s conduct. The character of the accused, including specific instances of the accused’s conduct, shall also be admissible in a presentencing hearing subject to the provisions of 17-10-2. (c) On cross-examination, inquiry shall be allowable into relevant specific instances of conduct. OCGA 24-4-405.
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24-4-40632
HABIT OR ROUTINE
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with such habit or routine practice. OCGA 24-4-406.
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SUBSEQUENT REMEDIAL MEASURES
In civil proceedings, when, after an injury or harm, remedial measures are taken to make such injury or harm less likely to recur, evidence of the remedial measures shall not be admissible to prove negligence or culpable conduct but may be admissible to prove product liability under subsection (b) or (c) of 51-1-11. The provisions of this Code section shall not require the exclusion of evidence of remedial measures when offered for impeachment or for another purpose, including, but not limited to, proving ownership, control, or feasibility of precautionary measures, if controverted. OCGA 24-4-407.
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24-4-40834
COMPROMISE & OFFERS TO COMPROMISE
(a) Except as provided in 9-11-68, evidence of: (1) Furnishing, offering, or promising to furnish; or (2) Accepting, offering, or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount shall not be admissible to prove liability for or invalidity of any claim or its amount. (b) Evidence of conduct or statements made in compromise negotiations or mediation shall not be admissible. (c) This section shall not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or mediation. This section shall not require exclusion of evidence offered for another purpose, including, but not limited to, proving bias or prejudice of a witness, negating a contention of undue delay or abuse of process, or proving an effort to obstruct a criminal investigation or prosecution. OCGA 24-4-408.
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FURNISHING, OFFERING, OR PROMISING TO PAY MEDICAL BILLS OR SIMILAR EXPENSES
Evidence of furnishing, offering, or promising to pay medical, hospital, or similar expenses occasioned by an injury shall not be admissible to prove liability for the injury. OCGA 24-4-409.
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24-4-41036
INADMISSIBILITY OF PLEAS, PLEA DISCUS-SIONS, AND RELATED STATEMENTS
Except as otherwise provided by law, evidence of the following shall not, in any judicial or administrative proceeding, be admissible against the criminal defendant who made the plea or was a participant in the plea discussions: (1) A plea of guilty which was later withdrawn; (2) A plea of nolo contendere; (3) Any statement made in the course of any proceedings in which a guilty plea or a plea of nolo contendere was entered and was later withdrawn, vacated, or set aside; or (4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty later withdrawn, vacated, or set aside; provided, however, that the statements described in paragraphs (1) through (4) of this section shall be admissible in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it or in a criminal proceeding for perjury or false statement if the statement was made by the accused under oath, on the record, and in the presence of counsel or after the accused voluntarily waived his or her right to counsel. OCGA 24-4-410.
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LIABILITY INSURANCE
In all civil proceedings involving a claim for damages, evidence that a person was or was not insured against liability shall not be admissible except as provided in this section. This section shall not require the exclusion of evidence of insurance against liability in proceedings under 46-7-12 or when such evidence is offered for a relevant purpose, including, but not limited to, proof of agency, ownership, or control, and the court finds that the danger of unfair prejudice is substantially outweighed by the probative value of the evidence. OCGA 24-4-411.
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24-4-41542
PRIOR OFFENSES IN CIVIL SEXUAL ASSAULT OR CHILD MOLESTATION PROCEEDINGS
(a) In a civil or administrative proceeding in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or an offense of child molestation, evidence of that party’s commission of another offense of sexual assault or another offense of child molestation shall be admissible and may be considered as provided in 24-4-413 and 24-4-414. (b) A party who intends to offer evidence under this section shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least ten days in advance of trial, unless the time is shortened or lengthened or pretrial notice is excused by the judge upon good cause shown. (c) This section shall not be the exclusive means to admit or consider evidence described in this section. (d) As used in this Code section, the term: (1) “Offense of child molestation” means any conduct or attempt or conspiracy to engage in: (A) Conduct that would be a violation of 16-6-4, 16-6-5, 16-12-100, 16-12-100.2, or 16-12-100.3; (B) Any crime that involves contact between any part of the accused’s body or an object and the genitals or anus of a child; (C) Any crime that involves contact between the genitals or anus of the accused and any part of the body of a child; or (D) Any crime that involves deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child.
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(2) “Offense of sexual assault” means any conduct or attempt or conspiracy to engage in: (A) Conduct that would be a violation of 16-6-1, 16-6-2, 16-6-3, 16-6-5.1, 16-6-22, 16-6-22.1, or 16-6-22.2; (B) Any crime that involves contact, without consent, between any part of the accused’s body or an object and the genitals or anus of another person; (C) Any crime that involves contact, without consent, between the genitals or anus of the accused and any part of another person’s body; or (D) Any crime that involves deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person. OCGA 24-4-415.
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24-4-41644
CONDUCT OF HEALTH CARE PROVIDERS
(a) As used in this section, the term “health care provider” means any person licensed under Chapter 9, 10A, 11, 11A, 26, 28, 30, 33, 34, 35, 39, or 44 of Title 43 or any hospital, nursing home, home health agency, institution, or medical facility licensed or defined under Chapter 7 of Title 31. The term shall also include any corporation, professional corporation, partnership, limited liability company, limited liability partnership, authority, or other entity comprised of such health care providers. (b) In any claim or civil proceeding brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which is made by a health care provider or an employee or agent of a health care provider to the patient, a relative of the patient, or a representative of the patient and which relates to the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest. OCGA 24-4-416.
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PRIVILEGE FOR AGENT
(b) No agent of a program shall be compelled to disclose any evidence in a judicial proceeding that the agent acquired while providing services to a victim, provided that such evidence was necessary to enable the agent to render services, unless the privilege has been waived by the victim or, upon motion by a party, the court finds by a preponderance of the evidence at a pretrial hearing or hearing outside the presence of the jury that: (1) In a civil proceeding: (A) The evidence sought is material and relevant to factual issues to be determined; (B) The evidence is not sought solely for the purpose of referring to the victim’s character for truthfulness or untruthfulness; provided, however, that this subparagraph shall not apply to evidence of the victim’s prior inconsistent statements; (C) The evidence sought is not available or already obtained by the party seeking disclosure; and (D) The probative value of the evidence sought substantially outweighs the negative effect of the disclosure of the evidence on the victim; or (2) In a criminal proceeding: (A) The evidence sought is material and relevant to the issue of guilt, degree of guilt, or sentencing for the offense charged or a lesser included offense; (B) The evidence is not sought solely for the purpose of referring to the victim’s character for truthfulness or untruthfulness; provided, however, that this subparagraph shall not apply to evidence of the victim’s prior inconsistent statements; (C) The evidence sought is not available or already obtained by the party seeking disclosure; and (D) The probative value of the evidence sought substantially outweighs the negative effect of the disclosure of the
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evidence on the victim. (c) If the court finds that the evidence sought may be subject to disclosure pursuant to subsection (b) of this section, the court shall order that such evidence be produced for the court under seal, shall examine the evidence in camera, and may allow disclosure of those portions of the evidence that the court finds are subject to disclosure under this section. (d) The privilege afforded under this section shall terminate upon the death of the victim. (e) The privilege granted by this section shall not apply if the agent was a witness or party to the family violence or sexual assault or other crime that occurred in the agent’s presence. (f) The mere presence of a third person during communications between an agent and a victim shall not void the privilege granted by this section, provided that the communication occurred in a setting when or where the victim had a reasonable expectation of privacy. (g) If the victim is or has been judicially determined to be incompetent, the victim’s guardian may waive the victim’s privilege. (h) In criminal proceedings, if either party intends to compel evidence based on this section, the party shall file and serve notice of his or her intention on the opposing party at least ten days prior to trial, or as otherwise directed by the court. The court shall hold a pretrial hearing in accordance with subsection (b) of this section and determine the issue prior to trial. OCGA 24-5-509.
PRIVILEGE FOR AGENT (CONT.)
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CHARACTER AND CONDUCT OF WITNESS
(a) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to the following limitations: (1) The evidence may refer only to character for truthfulness or untruthfulness; and (2) Evidence of truthful character shall be admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than a conviction of a crime as provided in 24-6-609, or conduct indicative of the witness’s bias toward a party may not be proved by extrinsic evidence. Such instances may however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) Concerning the witness’s character for truthfulness or untruthfulness; or (2) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. (c) The giving of testimony, whether by an accused or by any other witness, shall not operate as a waiver of the accused’s or the witness’s privilege against self-incrimination when examined with respect to matters which relate only to character for truthfulness. OCGA 24-6-608.
Chapter 3 27 of 76
24-6-60968
IMPEACHMENT BY CONVICTION CRIME
(a) General rule. For the purpose of attacking the character for truthfulness of a witness: (1) Evidence that a witness other than an accused has been convicted of a crime shall be admitted subject to the provisions of 24-4-403 if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused; or (2) Evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of such crime required proof or admission of an act of dishonesty or making a false statement. (b) Time limit. Evidence of a conviction under this Code section shall not be admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for such conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old, as calculated in this subsection, shall not be admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. (c) Effect of pardon, annulment, certificate of rehabilitation, or discharge from a first offender
Chapter 3 28 of 76
24-6-609 69
program. Evidence of a final adjudication of guilt and subsequent discharge under any first offender statute shall not be used to impeach any witness and evidence of a conviction shall not be admissible under this Code section if: (1) The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year; or (2) The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Nolo contendere pleas and juvenile adjudications. A conviction based on a plea of nolo contendere shall not be admissible to impeach any witness under this section. Evidence of juvenile adjudications shall not generally be admissible under this section. The court may, however, in a criminal proceeding allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence of the accused. (e) Pendency of appeal. The pendency of an appeal shall not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal shall be admissible. OCGA 24-6-609.
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24-6-61272
WRITING USED TO REFRESH MEMORY
(a) If a witness uses a writing to refresh his or her memory while testifying, an adverse party shall be entitled to have the writing produced at the hearing or trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness. (b) If a witness uses a writing to refresh his or her memory before testifying at trial and the court in its discretion determines it is necessary in the interests of justice, an adverse party shall be entitled to have the writing produced at the trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness. If the writing used is protected by the attorney-client privilege or as attorney work product under 9-11-26, use of the writing to refresh recollection prior to the trial shall not constitute a waiver of that privilege or protection. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions of such writing not so related, and order delivery of the remainder of such writing to the party entitled to such writing. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to an order under this section, the court shall make any order justice requires; provided, however, that in criminal proceedings, when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion
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24-6-612 73
determines that the interests of justice so require, declaring a mistrial. OCGA 24-6-612.
Chapter 3 31 of 76
24-6-61374
PRIOR STATEMENT OF WITNESS
(a) In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time; provided, however, upon request the same shall be shown or disclosed to opposing counsel. (b) Except as provided in 24-8-806, extrinsic evidence of a prior inconsistent statement by a witness shall not be admissible unless the witness is first afforded an opportunity to explain or deny the prior inconsistent statement and the opposite party is afforded an opportunity to interrogate the witness on the prior inconsistent statement or the interests of justice otherwise require. This subsection shall not apply to admissions of a party-opponent as set forth in 24-8-801(d)(2). (c) A prior consistent statement shall be admissible to rehabilitate a witness if the prior consistent statement logically rebuts an attack made on the witness’s credibility. A general attack on a witness’s credibility with evidence offered under 24-6-608 or 24-6-609 shall not permit rehabilitation under this subsection. If a prior consistent statement is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive, the prior consistent statement shall have been made before the alleged recent fabrication or improper influence or motive arose. OCGA 24-6-613.
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24-6-621 79
IMPEACHING WITNESS
A witness may be impeached by disproving the facts testified to by the witness. OCGA 24-6-621.
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24-6-62280
WITNESS’S FEELINGS AND RELATIONSHIP TO PARTIES
The state of a witness’s feelings towards the parties and the witness’s relationship to the parties may always be proved for the consideration of the jury. OCGA 24-6-622.
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24-7-702 93
EXPERT TESTIMONY; QUALIFICATIONS
(a) Except as provided in 22-1-14 and in subsection (g) of this section, the provisions of this section shall apply in all civil proceedings. The opinion of a witness qualified as an expert under this section may be given on the facts as proved by other witnesses. (b) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact. (c) Notwithstanding the provisions of subsection (b) of this section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert: (1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and (2) In the case of a medical malpractice action, had
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actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in: (A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or (B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and (C) Except as provided in subparagraph (D) of this paragraph: (i) Is a member of the same profession; (ii) Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or (iii) Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and (D) Notwithstanding any other provision of this section, an expert who is a physician and, as a result
EXPERT TESTIMONY; QUALIFICATIONS (CONT).
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of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician. (d) Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of subsections (a) and (b) of this section. Such hearing and ruling shall be completed no later than the final pretrial conference contemplated under 9-11-16. (e) An affiant shall meet the requirements of this section in order to be deemed qualified to testify as an expert by means of the affidavit required under 9-11-9.1. (f) It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this section, the courts of this state may draw from the opinions of the United States Supreme
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Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases. (g) This section shall not be strictly applied in proceedings conducted pursuant to Chapter 9 of Title 34 or in administrative proceedings conducted pursuant to Chapter 13 of Title 50. OCGA 24-7-702.
EXPERT TESTIMONY; QUALIFICATIONS (CONT.)
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24-7-703 97
BASES OF OPINION TESTIMONY BY EXPERTS
The facts or data in the particular proceeding upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Such facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. OCGA 24-7-703.
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24-7-70498
ULTIMATE ISSUE; MENTAL STATE OF ACCUSED
(a) Except as provided in subsection (b) of this section, testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of an accused in a criminal proceeding shall state an opinion or inference as to whether the accused did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. OCGA 24-7-704.
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DISCLOSURE OF UNDERLYING FACTS OR DATA TO EXPERT OPINION
An expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. An expert may in any event be required to disclose the underlying facts or data on cross-examination. OCGA 24-7-705.
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DEFINITIONS
As used in this chapter, the term: (a) “Statement” means: (1) An oral or written assertion; or (2) Nonverbal conduct of a person, if it is intended by the person as an assertion. (b) “Declarant” means a person who makes a statement. (c) “Hearsay” means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (d) “Hearsay” shall be subject to the following exclusions and conditions: (1) Prior statement by witness. (A) An out-of-court statement shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement or a prior consistent statement under 24-6-613 or is otherwise admissible under this chapter. (B) If a hearsay statement is admitted and the declarant does not testify at the trial or hearing, other out-of-court statements of the declarant shall be admissible for the limited use of impeaching or rehabilitating the credibility of the declarant, and not as substantive evidence, if the other statements qualify as prior inconsistent statements or prior consistent statements under 24-6-613. (C) A statement shall not be hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the
GENERAL PROVISIONS
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statement is one of identification of a person made after perceiving the person; and (2) Admissions by party-opponent. Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is: (A) The party’s own statement, in either an individual or representative capacity; (B) A statement of which the party has manifested an adoption or belief in its truth; (C) A statement by a person authorized by the party to make a statement concerning the subject; (D) A statement by the party’s agent or employee, but not including any agent of the state in a criminal proceeding, concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or (E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph. The contents of the statement shall be considered but shall not alone be sufficient to establish the declarant’s authority under subparagraph (C) of this paragraph, the agency or employment relationship and scope thereof under subparagraph (D) of this paragraph, or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subparagraph (E) of this paragraph.
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(e) “Public office” means: (1) Every state department, agency, board, bureau, commission, division, public corporation, and authority; (2) Every county, municipal corporation, school district, or other political subdivision of this state; (3) Every department, agency, board, bureau, commission, authority, or similar body of each such county, municipal corporation, or other political subdivision of this state; and (4) Every city, county, regional, or other authority established pursuant to the laws of this state. (f) “Public official” means an elected or appointed official. (g) “Public record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form and created in the course of the operation of a public office. OCGA 24-8-801.
DEFINITIONS (CONT.)
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HEARSAY RULE
Hearsay shall not be admissible except as provided by this article; provided, however, that if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible. OCGA 24-8-802.
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HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL
The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter; (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition; (3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless such statements relate to the execution, revocation, identification, or terms of the declarant’s will and not including a statement of belief as to the intent of another person; (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment; (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to
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enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but shall not itself be received as an exhibit unless offered by an adverse party; (6) Records of regularly conducted activity. Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of 24-9-902 or by any other statute permitting certification. The term “business” as used in this paragraph includes any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports shall be admissible under paragraph (8) of this section and shall not be admissible under this paragraph; (7) Absence of entry in records kept in accordance
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with paragraph (6) of this section. Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6) of this section, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness; (8) Public records and reports. Except as otherwise provided by law, public records, reports, statements, or data compilations, in any form, of public offices, setting forth: (A) The activities of the public office; (B) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, against the accused in criminal proceedings, matters observed by police officers and other law enforcement personnel in connection with an investigation; or (C) In civil proceedings and against the state in criminal proceedings, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness; (9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law; (10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report,
UNAVAILABILITY IMMATERIAL (CONT.)
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statement, or data compilation, in any form, was regularly made and preserved by a public office, evidence in the form of a certification in accordance with 24-9-902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry; (11) Records of religious organizations. Statements of birth, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization; (12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified and purporting to have been issued at the time of the act or within a reasonable time thereafter; (13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like; (14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable law authorizes the
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recording of documents of that kind in such office; (15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document; (16) Statements in ancient documents. Statements in a document in existence 20 years or more the authenticity of which is established; (17) Market reports and commercial publications. Market quotations, tabulations, lists, directories, or other published compilations generally used and relied upon by the public or by persons in the witness’s particular occupation; (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets, whether published electronically or in print, on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. If admitted, the statements may be used for cross-examination of an expert witness and read into evidence but shall not be received as exhibits; (19) Reputation concerning personal or family history. Reputation among members of a person’s family by blood, adoption, or marriage or among a person’s associates or in the community concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry,
UNAVAILABILITY IMMATERIAL (CONT.)
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or other similar fact of the person’s personal or family history; (20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community and reputation as to events of general history important to the community or state or nation in which such lands are located; (21) Reputation as to character. Reputation of a person’s character among associates or in the community; (22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty but not upon a plea of nolo contendere, adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year to prove any fact essential to sustain the judgment, but not including, when offered by the state in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but shall not affect admissibility; or (23) Judgment as to personal, family, or general history or boundaries. Judgments as proof of matters of personal, family, or general history or boundaries essential to the judgment, if the same would be provable by evidence of reputation. OCGA 24-8-803.
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EXCEPTIONS; DECLARANT UNAVAILABLE
(a) As used in this section, the term “unavailable as a witness” includes situations in which the declarant: (1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; (2) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; (3) Testifies to a lack of memory of the subject matter of the declarant’s statement; (4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) Is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance or, in the case of exceptions under paragraph (2), (3), or (4) of subsection (b) of this section, the declarant’s attendance or testimony, by process or other reasonable means. A declarant shall not be deemed unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. (b) The following shall not be excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil proceeding, a
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predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. If deposition testimony is admissible under either the rules stated in 9-11-32 or this section, it shall be admissible at trial in accordance with the rules under which it was offered; (2) In a prosecution for homicide or in a civil proceeding, a statement made by a declarant while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death; (3) A statement against interest. A statement against interest is a statement: (A) Which a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate a claim by the declarant against another or to expose the declarant to civil or criminal liability; and (B) Supported by corroborating circumstances that clearly indicate the trustworthiness of the statement if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability; (4) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated or a statement concerning the foregoing matters and death also of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately
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associated with the other’s family as to be likely to have accurate information concerning the matter declared; or (5) A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. OCGA 24-8-804.
DECLARANT UNAVAILABLE (CONT.)
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HEARSAY WITHIN HEARSAY
Hearsay included within hearsay shall not be excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule. OCGA 24-8-805.
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ADMISSIONS IN PLEADINGS
Without offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other. OCGA 24-8-821.
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MEDICAL REPORTS
(a) Upon the trial of any civil proceeding involving injury or disease, any medical report in narrative form which has been signed and dated by an examining or treating licensed physician, dentist, orthodontist, podiatrist, physical or occupational therapist, doctor of chiropractic, psychologist, advanced practice registered nurse, social worker, professional counselor, or marriage and family therapist shall be admissible and received in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations, including the basis therefor, by the person signing the report, the same as if that person were present at trial and testifying as a witness; provided, however, that such report and notice of intention to introduce such report shall first be provided to the adverse party at least 60 days prior to trial. A statement of the qualifications of the person signing such report may be included as part of the basis for providing the information contained therein, and the opinion of the person signing the report with regard to the etiology of the injury or disease may be included as part of the diagnosis. Any adverse party may object to the admissibility of any portion of the report, other than on the ground that it is hearsay, within 15 days of being provided with the report. Further, any adverse party shall have the right to cross-examine the person signing the report and provide rebuttal testimony. The party tendering the report may also introduce testimony of the person signing the report for the purpose of supplementing the report or otherwise. (b) The medical narrative shall be presented to the jury as depositions are presented to the jury and shall
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not go out with the jury as documentary evidence. OCGA 24-8-826.
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REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
(a) The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this section: (1) Testimony of a witness with knowledge that a matter is what it is claimed to be; (2) Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation; (3) Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. Such specimens shall be furnished to the opposite party no later than ten days prior to trial; (4) Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances; (5) Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker; (6) Telephone conversations, by evidence that a call was made to the number assigned at the time by a telephone service provider to a particular person or
GENERAL PROVISIONS
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business, if: (A) In the case of a person, circumstances, including self-identification, show the person answering to be the one called; or (B) In the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone; (7) Evidence that a document authorized by law to be recorded or filed and in fact recorded or filed in a public office or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept; (8) Evidence that a document or data compilation, in any form: (A) Is in such condition as to create no suspicion concerning its authenticity; (B) Was in a place where it, if authentic, would likely be; and (C) Has been in existence 20 years or more at the time it is offered; (9) Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result; or (10) Any method of authentication or identification provided by law. OCGA 24-9-901.
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SELF-AUTHENTICATION
Extrinsic evidence of authenticity as a condition precedent to admissibility shall not be required with respect to the following: (1) A document bearing a seal purporting to be that of the United States or of any state, district, commonwealth, territory, or insular possession thereof or the Panama Canal Zone or the Trust Territory of the Pacific Islands or of a political subdivision, department, officer, or agency thereof or of a municipal corporation of this state and bearing a signature purporting to be an attestation or execution; (2) A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) of this section having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine; (3) A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make such execution or attestation and accompanied by a final certification as to the genuineness of the signature, official position of the executing or attesting person, or of any foreign official whose certificate of genuineness of signature and official position relates to such execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to such execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States or
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a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that such documents be treated as presumptively authentic without final certification or permit such documents to be evidenced by an attested summary with or without final certification; (4) A duplicate of an official record or report or entry therein or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification by certificate complying with paragraph (1), (2), or (3) of this section or complying with any law of the United States or of this state, including 24-9-920; (5) Books, pamphlets, or other publications purporting to be issued by a public office; (6) Printed materials purporting to be newspapers or periodicals; (7) Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin; (8) Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments; (9) Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law;
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(10) Any signature, document, or other matter declared by any law of the United States or of this state to be presumptively or prima facie genuine or authentic; (11) The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under paragraph (6) of section 24-8-803 if accompanied by a written declaration of its custodian or other qualified person certifying that the record: (A) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of such matters; (B) Was kept in the course of the regularly conducted activity; and (C) Was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph shall provide written notice of such intention to all adverse parties and shall make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge such record and declaration; or (12) In a civil proceeding, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under paragraph (6) of 24-8-803 if accompanied by a written declaration by its custodian or other qualified person certifying that the record: (A) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) Was kept in the course of the regularly conducted activity; and (C) Was made by the regularly conducted activity as a regular practice.
SELF-AUTHENTICATION (CONT.)
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The declaration shall be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph shall provide written notice of such intention to all adverse parties and shall make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge such record and declaration. OCGA 24-9-902.
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COMPETENCY TO IDENTIFY MEDICAL BILLS
(a) Upon the trial of any civil proceeding involving injury or disease, the patient or the member of his or her family or other person responsible for the care of the patient shall be a competent witness to identify bills for expenses incurred in the treatment of the patient upon a showing by such a witness that the expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of litigation at trial and that the bills were received from: (1) A hospital; (2) An ambulance service; (3) A pharmacy, drugstore, or supplier of therapeutic or orthopedic devices; or (4) A licensed practicing physician, dentist, orthodontist, podiatrist, physical or occupational therapist, doctor of chiropractic, psychologist, advanced practice registered nurse, social worker, professional counselor, or marriage and family therapist. (b) Such items of evidence need not be identified by the one who submits the bill, and it shall not be necessary for an expert witness to testify that the charges were reasonable and necessary. However, nothing in this section shall be construed to limit the right of a thorough and sifting cross-examination as to such items of evidence. OCGA 24-9-921.
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COPIES OF RECORDS OF DPS OR DDS IN OTHER STATES
(a) Any court may receive and use as evidence in any proceeding information otherwise admissible from the records of the Department of Public Safety or the Department of Driver Services obtained from any terminal lawfully connected to the Georgia Crime Information Center without the need for additional certification of such records. (b) Any court may receive and use as evidence for the purpose of imposing a sentence in any criminal proceeding information otherwise admissible from the records of the Department of Driver Services obtained from a request made in accordance with a contract with the Georgia Technology Authority for immediate on-line electronic furnishing of information. OCGA 24-9-924.
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REQUIREMENTS OF ORIGINAL
To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required. OCGA 24-10-1002.
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ADMISSIBILITY OF DUPLICATES
A duplicate shall be admissible to the same extent as an original unless: (1) A genuine question is raised as to the authenticity of the original; or (2) A circumstance exists where it would be unfair to admit the duplicate in lieu of the original. OCGA 24-10-1003.
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ADMISSIBILITY OTHER EVIDENCE CONTENTS
The original shall not be required and other evidence of the contents of a writing, recording, or photograph shall be admissible if: (1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; (2) No original can be obtained by any available judicial process or procedure; (3) At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or (4) The writing, recording, or photograph is not closely related to a controlling issue. OCGA 24-10-1004.
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PROVING CONTENTS BY TESTIMONY, DEPOS, OR WRITTEN ADMISSION
The contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original. OCGA 24-10-1007.
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NOTICE TO PRODUCE
Where a party desires to compel production of evidence in the possession, custody, or control of another party, in lieu of serving a subpoena under this article, the party desiring the production may serve a notice to produce upon counsel for the other party. Service may be perfected in accordance with 24-13-24, but no witness fees or mileage shall be allowed therefor. Such notices may be enforced in the manner prescribed by 24-13-26, and 24-13-23 shall also apply to such notices. The notice shall be in writing, signed by the party seeking production of the evidence, or the party’s attorney, and shall be directed to the opposite party or his or her attorney. OCGA 24-13-27.
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AMOUNT OF MENTAL CONVICTION
Moral and reasonable certainty is all that can be expected in legal investigation. Except as provided in 51-1-29.5 or 51-12-5.1, in all civil proceedings, a preponderance of evidence shall be considered sufficient to produce mental conviction. In criminal proceedings, a greater strength of mental conviction shall be held necessary to justify a verdict of guilty. OCGA 24-14-3.
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PRESUMPTION ARISING FROM FAILURE TO PRODUCE EVIDENCE
If a party has evidence in such party’s power and within such party’s reach by which he or she may repel a claim or charge against him or her but omits to produce it or if such party has more certain and satisfactory evidence in his or her power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against such party is well founded; but this presumption may be rebutted. OCGA 24-14-22.
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PRESUMPTION ARISING FROM FAILURE TO ANSWER LETTER
In the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise, the party shall be presumed to admit the propriety of the acts mentioned in the letter of the party’s correspondent and to adopt them. OCGA 24-14-23.
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AMERICAN EXPERIENCE MORTALITY TABLES ADMISSIBLE TO SHOW LIFE EXPECTANCY
In all civil proceedings where the life expectancy of a person shall be an issue, the American Experience Mortality Tables shall be admissible as evidence of the life expectancy of such person. OCGA 24-14-44.
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THE COMMISSIONERS 1958 STANDARD ORDINARY MORTALITY TABLES AND ANNUITY MORTALITY TABLE FOR 1949, ULTIMATE ADMISSIBLE IN ACTIONS INVOLVING WRONGFUL DEATH OR PERMANENT PERSONAL INJURY
(a) In addition to any other lawful methods of computing the value of the life of a decedent in wrongful death cases or of determining the present value of future due earnings or amounts in proceedings involving permanent personal injuries, there shall be admissible in evidence, as competent evidence in such proceedings, either or both of the following mortality tables: (1) The Commissioners 1958 Standard Ordinary Mortality Table; or (2) Annuity Mortality Table for 1949, Ultimate. (b) In addition to the provisions set out in subsection (a) of this section, the jury or court shall be authorized in cases of wrongful death or permanent personal injuries to use any table determined by the jury or court, whichever is the trier of fact, to be accurate in showing the value of annuities on single lives according to the mortality tables listed in subsection (a) of this section. (c) The admissible evidence provided for in subsections (a) and (b) of this section shall not be the exclusive method which the jury or court is required to use in such proceedings but shall be supplementary to other lawful and allowable evidence and methods for such purpose. OCGA 24-14-45.
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HOW TO BE ETHICAL AND
AVOID MALPRACTICE
David N. LefkowitzThe Lefkowitz Firm, LLC
Atlanta, GeorgiaAthens, Georgia
PLAINTIFF’S PERSONAL INJURY
2
David Lefkowitz graduated from Columbia University with a B.A. in 1985
and earned his J.D. from Emory University School of Law in 1988. The Lefkowitz
Firm, LLC, represents individuals and corporations in their claims for legal
malpractice (legal negligence) and similar claims such as breach of fiduciary
duty; misconduct by officers or shareholders in closely held businesses; trustee
misconduct; executor misconduct and ethical misconduct by attorneys and other
fiduciaries. David has offices in Atlanta and Athens.
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Avoiding claims for legal malpractice and ethical violations requires more
than merely following the law and exercising the appropriate standard of care.
While meeting those criteria likely would allow you to prevail at a trial, it is
important for an attorney to understand how to keep a client from contemplating
such a claim, let alone threatening one or filing one.
Most legal malpractice claims (and awards) are not related to an attorney’s
knowledge of the law. The statute of limitations for a personal injury suit in
Georgia is 2-years, and it has been for decades. If a lawyer misses that deadline,
it isn’t because he did not know the law. With new laws, however, the failure to
keep up with the changes can lead to claims.
The fact is, however, that bar complaints and malpractice claims arise out
of a large group of administrative-type errors, including a failure to screen clients
properly, monitor deadlines, analyze conflict issues, communicate effectively with
clients, etc. The process of avoiding malpractice claims begins before you enter
into an attorney-client relationship and continues after the relationship ends.
Choosing Clients
Choose your clients carefully. You can avoid a claim for legal malpractice
by considering a few factors, including: (a) the client’s experience with prior
attorneys–has the client threatened or pursued legal action or filed a bar
complaint against a former attorney? (b) the client’s motives and goals–can you
achieve those goals for your client? Does the client seek revenge or some other
remedy that you either cannot or are prohibited from achieving? (c) the client’s
use of alcohol or drugs–will this impair the judgment of the client? (d) the client’s
financial condition, including bankruptcy or outstanding judgments–can the
client afford to pay the fees which will be incurred during the representation?
You always want to avoid a potential dispute over fees, as discussed below; (e) the
client’s prior legal problems–does the client have a criminal record (including
felonies, which may impact credibility at trial)?
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Formalize
Formalize your attorney-client relationship. You should have a written
agreement with your client regarding the representation. If you are using an
engagement letter, it should be signed by the client. (Contrary to popular belief,
The Rules of Professional Conduct do not require that a contingency fee
agreement be signed by the client. The Rules simply require that the agreement
be in writing. Nonetheless, be sure the agreement is signed by the client. One
day you may need to prove what the terms/limitations of the attorney-client
relationship were.) It never ceases to surprise me that many lawyers fail to have
fee contracts with their clients. The contract is the best opportunity you have to
set forth the duties you and your client owe to one another, as well as the
limitations on the representation. Some lawyers feel that a long contract may
scare/concern a prospective client. A contact is too important; don’t limit it. All
the terms of the representation should be disclosed in the agreement, including
the scope of the representation, the fees that will be charged, whether a retainer
is required, etc.
The fee agreement should specifically discuss the hourly rate to be charged
by each attorney (or other professional working on the matter, such as a legal
assistant) or other form of fee, such as a contingency fee. Any plaintiff attorney’s
contingency fee should be accurately described in the fee agreement, be it a form
used for many clients or an engagement letter. For instance, does the fee vest
upon the agreement to settle with the opposing party or upon the receipt of the
settlement proceeds? Under Georgia law, you can protect yourself from the
possibility that a client, in attempt to deny you your contingency fee, may
discharge you after settlement offers have been made. In Morrow v. Stewart, 197
Ga. App. 689, 399 S.E. 280 (1990), the Court of Appeals approved of (and
enforced) the following language from an attorney-client contingency fee
contract:
“I understand that I may dismiss my attorney at anytime, for
any reason, upon written notice to him and payment of
unpaid expenses and services rendered to the date of the
receipt of such notice; payment to be based upon time
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devoted to my case at any hourly rate of $80.00 per hour, or
the applicable percentage of fee due him under the terms of
this agreement of any offers which have been made by any
adversary or collateral party, whichever is greater.”
You should also contemplate whether you want your fee arrangement to
reference the possibility that an appeal may be filed and whether you will charge
an additional fee or whether such work included in the contingency? Note that
Georgia Rule of Professional Conduct 1.5 requires that a contingency fee be in
writing and shall state the method by which the fee is to be determined, including
the percentages, whether interest will be charged, etc.
Expenses that will be billed to the client should be discussed in the fee
contract. This is true whether the expenses will be billed (and paid for) each
month or whether the attorney is paying the expenses and expects to be
reimbursed from the expected recovery. In a contingency fee context, the client
should be informed that he will be responsible for the expenses of litigation even
if there is no recovery. If the attorney is going to charge interest on the funds that
are used for out-of-pocket expenses, the interest rate should be clearly set forth in
the contract. The contract should also be clear as to whether the expenses will be
paid out of the client’s portion of the settlement proceeds or from the top, before
the attorney and client’s portions are determined.
If an attorney will be billing by the hour, the contract should clearly set
forth the frequency of the billing and when the client will be expected to pay the
bill. The monthly statement is an excellent opportunity to describe to the client
the work that is being performed, not only for purposes of asking to be paid, but
for purposes of making sure the client knows that you are toiling for him. If an
attorney performs any work for a prospective client, but ultimately decides not to
enter into a formal attorney-client relationship, the attorney should send a
nonengagement letter. A nonengagement letter protects the attorney from a
subsequent claim that the client expected certain work to be performed. A
nonengagement letter may not be practical for every situation in which an
attorney converses with an individual with regard to prospective representation,
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but there are certain situations in which the failure to send a nonengagement
letter can lead to disaster. One situation occurs when an attorney charges a fee
for a consultation regarding the merits of a particular case. For instance,
consider the situation in which a family member of a resident of a nursing home
hires an attorney to review medical records, consult with an expert witness,
conduct research and do whatever else is necessary to determine whether a valid
claim for medical malpractice exists. Should the attorney decide that no such
claim exists (or, perhaps, that a claim does exist, but it is not a claim which his
firm will handle), the attorney should send a nonengagement letter to the
prospective client stating that the firm will not be representing the client and
providing any information which the client may need, particularly the date when
the applicable statute of limitations will expire. The letter should suggest that the
client consult with another attorney as soon as practicable.
Should an attorney find himself in a situation in which he has been
engaged and later decides to withdraw, a disengagement letter should be sent
to the client. This letter may discuss the reason why the attorney-client
relationship is ending, whether the attorney will work with/consult with
subsequent counsel, and whether any additional attorney’s fees are owed. The
attorney should confirm that the client receives a written notice of the
disengagement. This means that the letter should be sent by certified mail (or
some other means such that the client’s receipt of the letter can be confirmed).
While this information will be helpful to the client, the written confirmation that
the client is aware of the disengagement may be extremely important to the
attorney. There have been several legal malpractice cases arising out of the
running of the statute of limitations, followed by the client suing the attorney.
The attorney claims that he had withdrawn and told the client that he would not
be filing suit, and the client claims that he had no such knowledge of a
withdrawal and expected that suit would be filed in a timely manner. Why risk
this he said-she said? Document the withdrawal.
One final point: Do not wait until the statute of limitations is about to
expire to decide to withdraw. It is not uncommon for an attorney to agree to
review a file when there are several months remaining before the statute of
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limitations (or other filing deadline) will expire. Given the lack of an imminent
deadline, the file is placed on the back burner. As the deadline for filing
approaches, the attorney decides, for some reason, that he does not want to
handle the case after-all. If the attorney withdraws at such a late date that the
client cannot find substitute counsel, he is inviting a claim for legal malpractice.
The duty to withdraw in an appropriate manner is particularly important in a
complicated case. It is not reasonable to expect that you can tell a client you
decided not to take her medical malpractice case three days before the statute
expires, leaving the client without counsel and without much opportunity to find
counsel.
Impressions
Impressions are extremely important. Malpractice actions are not filed for
every error or every negligent act. Developing a rapport with your client may not
prevent malpractice, but it can assist in preventing malpractice claims. If a client
values the attorney-client relationship, it might outweigh the perceived value of a
malpractice claim. Always avoid the impression that you are being neglectful.
Georgia ethical rules require that an attorney keep a client reasonably informed
about a matter. This is a minimum threshold, and in emotional cases, such as
those involving divorce or child custody issues, additional communication is
helpful. An attorney should provide the client with the impression that the legal
matter is being given the attention that it requires. This is best handled through
quality communication. This communication can take many forms, including
effective billing (in which the work performed is itemized), phone calls to the
client, letters to the client and sending copies of pleadings to the client. See
section entitled “Communicate,” below.
Expectations
Preparing quality documents, meeting deadlines and understanding
the law are obvious ways to avoid malpractice claims. In certain areas of law,
however, it is inevitable that a client will be disappointed from time-to-time. This
is particularly true in cases in which there is a trial: one party is going to lose. In
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addition, legal matters such as divorce and criminal cases are rife with emotion
and disappointment, sometimes misdirected at the attorney. It is important that
the client understand the difference between losing and substandard
representation. This potential for confusion on the part of the client should be
addressed from the beginning of an attorney-client relationship through its
conclusion.
One important way for an attorney to avoid having a disappointed client
(and thus one who might pursue a legal malpractice claim) is to set realistic
expectations. Many clients will have some expectations upon entering the
attorney-client relationship. However, most clients form their expectations
regarding the outcome of a legal matter based on conversations with their lawyer.
An attorney should avoid the temptation to set unreasonably high expectations
during the initial interview process (when the lawyer knows that the prospective
client may be choosing between several attorneys). Of course, you should never
give the client the idea that you are guaranteeing a successful result.
An attorney who has had no experience with legal malpractice might be
surprised to learn that many clients who call for a consultation with regard to a
prospective legal malpractice claim think that their attorney was “paid off” by the
opposing attorney or party. Why would a client feel like he has been “sold out?”
This feeling is often caused by the failure of the attorney to meet the expectations
he has helped to set. If you tell your client (or prospective client) that his claim is
worth $100,000, and it ultimately settles for $5,000, you have some explaining
to do. However, if you keep the client informed as to the status of the matter you
are handling, and you promptly let the client know of any important
developments, you can continue to manage the expectations of your client
throughout the representation. By doing so, the chances of surprise and bitter
disappointment are reduced.
Communicate
It is not possible to overstate the importance of effective communication
with your client. Clients’ phone calls should be returned promptly. If the
primary attorney handling the file cannot return the call, then another attorney at
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the firm, a legal assistant or a legal secretary should return the call. When clients
feel that they are being treated as unimportant, it is inevitable that they will feel
that their case is not being handled zealously. A less than favorable conclusion to
the case will be blamed on this perceived lack of attention.
Communicating with a client is not only a good way to keep attorney-client
relations healthy; there is an affirmative ethical duty to keep clients apprised of
the status of their case. Georgia Rule of Professional Conduct 1.4 is entitled
“Communication” and reads as follows:
A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation, shall keep the client reasonably
informed about the status of matters and shall promptly comply
with reasonable requests for information. The maximum penalty
for a violation of this Rule is a public reprimand.
This ethical rule can become a problem when the attorney knows, or
suspects, that he has made a mistake in the course of representing the client. The
attorney may feel that he can repair the error and will therefore decide not to tell
the client that their case is in peril. This decision can rise to the level of fraud in a
subsequent legal malpractice lawsuit, and is not worth the risk. Tell the clients
the good, the bad and the ugly. It’s often a difficult task, but the alternative is
unacceptable: the client sues you for hiding the error from him. Additionally,
hiding the error can extend the statute of limitations, as certain types of fraud will
toll the statute of limitations until such time as the client knew, or reasonably
should have known, of the fraud. Furthermore, it should be noted that fraud
committed after the negligence can support a claim for punitive damages, even if
no monetary damages were caused by such fraudulent concealment. The Court of
Appeals has held that such behavior constitutes a breach of fiduciary duty, which
can give rise to punitive damages. (Holmes v. Drucker, 201 Ga. App. 687 (1991)).
Keep Yourself Apprised of the Status of a Case
In addition to keeping your client apprised of the status of his case, the
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attorney has a duty to keep himself apprised of the status. This may seem self-
evident, but attorneys can be held liable for the failure to diligently follow the
status of their cases. In Hipple v. Brick, 202 Ga. App. 571 (1992), a client sued his
lawyer for failure to protect his right of appeal in the prior action. In the
underlying case, the client had a $39,000 judgment against him. The attorney
then moved for judgment notwithstanding the verdict or, in the alternative, a new
trial. When the court denied the motion 13 months later, the attorney did not
receive notice of the entry of the order. After 35 days had expired, the attorney
learned of the order in a telephone call from opposing counsel. At that point, the
30-day filing period for a notice of appeal had expired, and the attorney took no
action to resurrect the case (such as filing a motion to set aside the judgment in
order to gain a new 30-day period, under O.C.G.A. § 9-11-60 (d)). The client’s
malpractice claim was predicated on attorney Hipple's alleged negligence in
failing to monitor the status of the case and timely to inform Brick of the order so
that an appeal could have been taken. Attorney Hipple claimed he was entitled to
summary judgment on the theory that, as a matter of law, he breached no duty to
his client in relying on the court and the mail to provide notification to him of
entry of the court's order on the motions, as it is standard practice for attorneys
to do so. The Court of Appeals held that O.C.G.A. §15-6-21 does not relieve an
attorney from keeping informed of the progress of a client’s case. (O.C.G.A. §15-
6-21(c) places a duty on the judge to file his or her decision on a motion for new
trial with the clerk of the court in which the cases are pending and to notify the
attorney or attorneys of the losing party of his or her decision.) According to the
Court of Appeals, the attorney has a separate and independent duty that arises
from the contract with the client. Therefore, even if the trial court had failed to
send the notice, it would not have relieved the attorney of his obligation to check
for over one year. The Court of Appeals noted that in Bragg v. Bragg, 225 Ga.
494, 496 (1969), the Georgia Supreme Court had held that, “[i]t is fundamental
that it is the duty of counsel who have cases pending in court to keep themselves
informed as to the progress of the cases so that they may take whatever actions
may be necessary to protect the interests of their clients."
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Explain the meaning of Legal Documents to Clients
The general understanding of Georgia law is that if a client signs a
document, he is held to have understood it and is subsequently bound by it.
However, there are reported cases in which a lawyer presented a document to his
client for signature and was subsequently sued because of the legal ramifications
of the language. For instance, in Little v. Middleton, 198 Ga. App. 393 (1991), the
defendant attorney had represented a client in a personal injury case arising out
of a car accident. The case settled against the tortfeasor for his $25,000 liability
limits. The release agreement released the tortfeasor and his “heirs, executors,
administrators, agents and assigns, and all other persons, firms or corporations
liable or who might be claimed to be liable....” The injured driver’s own
underinsured insurance carrier subsequently refused to pay the plaintiff based on
her execution of the release. The plaintiff then sued her attorney for legal
malpractice, based on her attorney’s failure to read her policy to determine
whether there was UM insurance, the failure to properly pursue the UM claim,
and the failure to advise her as to the legal effect of the release on her UM claim.
The attorney filed a motion for summary judgment asserting that the language of
the release was clear, that the client should have understood it and that the client
was thus barred from suing him for any misunderstanding regarding the effects
of the release. The trial court granted the motion for summary judgment.
However, the Court of Appeals reversed, holding that a question of fact existed as
to whether the legal effect of the release posed to the plaintiff “a legal technicality
that she was unequipped to appreciate as a non-lawyer.” Id. at 395. The Georgia
Supreme Court granted cert., but subsequently vacated cert. after briefs were
filed and the Supreme Court heard oral argument. The practical effect of Little is
that an attorney must explain the meaning of documents that are presented to a
client for signature. While the need to explain language varies depending on the
sophistication and education of the client, the safe approach is to explain
language, including boilerplate that attorneys see on a daily basis.
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Fee Disputes
At least 25% of all legal malpractice claims arise out of fee disputes (some
claim it is as high as 75%). If you file a suit against a client for fees, any claim for
legal malpractice becomes a compulsory counterclaim, and an invitation to be
sued. When you apply for errors and omissions coverage, you likely will be asked
whether you have sued a client for legal fees within the past year. You are asked
this question because insurance companies know that fee disputes are a common
cause for legal malpractice claims (legitimate or not) to be filed. You are entitled
to be paid for the legal services you provide. But when deciding to file suit, file a
lien, etc., keep in mind that your client may file a counterclaim that will cost you
time and money. You will have to pay your deductible on your policy, and your
insurance premiums likely will rise. You may suffer from bad publicity or
damage to your reputation. Make sure that the decision to sue a client is made
with an understanding of the professional and financial risks. Consider ADR as
an option.
Georgia law currently allows you to put a clause in your attorney-client fee
agreement which limits the time within which a client may object to an invoice.
You can further limit the client’s right to object by requiring that the objection be
in writing. As the law currently is enforced, the client’s failure to object within
the specified time period will forever bar the client from objecting to the invoice.
Typical language used in a fee agreement reads as follows: “Your failure to object
in writing to any bill within thirty (30) days of the date of each such bill shall
constitute a waiver on your part of the right to challenge the charges made for
legal services and expenses on each billing statement.” In Loveless v. Sun Steel
206 Ga. App. 247, 424 S.E.2d 887 (1992), the Court of Appeals addressed a
situation in which an attorney sued for unpaid legal fees. The former client
contended that he had verbally complained about the fees, and further, that he
and the attorney had an understanding that the fees would only be due under
certain circumstances. The Court of Appeals held that the written contact was
binding and that any ‘understanding’ would constitute parol evidence and be
inadmissible within the context of a dispute regarding a written attorney-client
fee agreement. I should add that this type of contractual provision, which can
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limit the rights of the client, is of questionable ethical propriety, and it has never
been approved by the Georgia Supreme Court. If your contract contains this type
of provision, you should be very careful about seeking to enforce it.
This concern arises out of the fact that Georgia law does not allow an
attorney to contractually limit the time in which a client may complain about
legal malpractice (ie: the statute of limitations for legal malpractice claim is 4
years (or maybe six, if you had a written fee contract), and an attorney may not
decrease that time frame by contractually limiting the time for a complaint to 30-
days or some other time similar to the above Loveless time limit.) It seems
contradictory that a client can be limited to the amount of time within which she
may complain about substandard legal work vis-à-vis the invoices, but may not
be limited to the amount of time she may complain about substandard work in
the context of a legal malpractice claim. That is a topic for an entire paper. My
best advice is: be careful when you attempt to limit your client’s rights/remedies,
as it can easily be construed as your placing your own interests ahead of your
client’s interests.
File Materials
Attorneys often hesitate to turn over their file materials to clients,
particularly clients who have not paid their bills or are threatening to file suit.
Attorneys have a statutory lien on clients' papers and money in their possession,
and they "may retain the papers until the claims are satisfied." O.C.G.A. §15-19-14
(a). However, Formal Advisory Opinion of the State Bar of Georgia No. 87-5,
states that an attorney “may not to the prejudice of a client withhold the client's
papers or properties upon withdrawal from representation as security for unpaid
fees.”
In Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571 (2003), the
Georgia Supreme Court phrased the issue as follows: “Boiled down to its essence,
the question is this: Does a document created by an attorney in the course of
representing a client belong to the attorney or the client?”
The answer fell squarely on the side of the client and relied up the above-
referenced Formal Advisory Opinion:
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“An attorney's fiduciary relationship with a client depends, in
large measure, upon full, candid disclosure. That relationship
would be impaired if attorneys withheld any and all documents
from their clients without good cause, especially where the
documents were created at the client's behest. See State Bar of
Georgia, Formal Advisory Opinion No. 87-5 (September 26,
1988) (attorney may not, to the prejudice of client, withhold
client's papers as security for unpaid fees).”
(Id. at 573)
What is “good cause?” The Supreme Court held that good cause to refuse
to turn over the documents “would arise where disclosure would violate an
attorney's duty to a third party. Good cause might also be shown where the
document assesses the client himself, or includes "tentative preliminary
impressions of the legal or factual issues presented in the representation,
recorded primarily for the purpose of giving internal direction to facilitate
performance of the legal services entailed in that representation." (Id.)
Missing from the Court’s definition of good cause was “the client hasn’t
paid his bill.”
Most clients can make an argument that your retention of their files is
causing them damage. The better choice is not to give the appearance that you
are holding the file hostage.
Bar Complaints
If a client has filed a Bar Complaint against you, hire counsel to respond.
There are many defenses that may cause the State Bar to dismiss a complaint at
the first stage. It is not uncommon for a Bar Complaint that has no merit on its
face to become a serious matter because the responding attorney says too much,
or the wrong thing, in the initial response. Hire someone who is experienced in
these matters. It can save you a lot of stress, and in the worst-case scenario, it
can save your license.
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Meeting deadlines, filing appropriate pleadings and understanding the law
are obvious ways to avoid malpractice claims. In certain areas of law, however, it
is inevitable that a client will be disappointed from time-to-time. This is
particularly true in cases in which there is a trial: one party is going to lose. It is
important that the client understand the difference between losing and
substandard representation. This potential for confusion on the part of the client
should be addressed from the beginning of an attorney-client relationship
through its conclusion.
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MAKING YOUR CLIENT WHOLE:GETTING YOUR FEES FOR BAD FAITH AND ABUSIVE LITIGATION
Charlotte B. PerrellPerrell & Wright, LLC
Atlanta, Georgia
PLAINTIFF’S PERSONAL INJURY
Special thanks to Kimberly Coleman for her assistance in preparing this paper.
ii
TABLE OF CONTENTS
I. INTRODUCTION……………………………………………………………………………..1
II. PRE-SUIT BEHAVIOR GIVING RISE TO RECOVERY OF ATTORNEY’S FEES AND
COSTS……………………………………………………………………….....................2
A. PLEADING REQUIREMENTS………………………………………………………….3
B. PLAINTIFF MUST PREVAIL AND DEFENDANT’S ACTIONS MUST WARRANT
AN AWARD……………………………………………………………………………….4
III. BEHAVIOR DURING THE LITIGATION…………………………………………………5
A. O.C.G.A. §9-15-14 MOTION FOR ATTORNEYS FEES………………………..5
B. O.C.G.A. §51-7-80 SEPARATE ACTION FOR ADDITIONAL DAMAGES……9
IV. POST TRIAL BEHAVIOR……………………………………………...………………….10
V. PROVING THE FEES……………………………………………………………………….11
VI. CONCLUSION……………………………………………………………………………….13
Chapter 5 i
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I. INTRODUCTION
Recovering a client’s attorney’s fees is often the key ingredient to actually making
the client whole for the damage or injury they have suffered. When a defendant has
acted in bad faith and taken the “so sue me” approach to a claim, a resolution without
the recovery of attorney’s fees is inadequate. The client inevitably is never made whole.
Hence, the recovery of the client’s fees and costs from the other side, when possible,
provides a client with their full cup of justice. While the “American Rule” generally
provides that all parties bear their own costs of litigation including the costs of their
attorney’s fees, there are a number of statutes which operate as fee shifting mechanisms
to allow for the recovery of fees from the opposing side in the event they exhibit certain
behavior either before, during or after the trial phase of the litigation that justifies their
requirement to pay fees. This paper addresses, in overview form, those statutes which
are regularly used to recover attorney’s fees and expenses from the opposing side as well
the practical considerations as to proof and presentation of those fees sought to be
awarded to the client.
The point at which a party or their attorney’s “bad” conduct has occurred
determines the statute under which to pursue recovery of fees as recompense for this
behavior. Hence, it is helpful to group the conduct into three broad time categories, to
wit: 1) before, 2) during, and, 3) after the trial phase of the lawsuit. Different statutes
govern the recovery of fees during each of these phases. If the actions of the defendant
prior to the litigation were done in bad faith and constitute stubborn litigiousness such
that the plaintiff has had to file a lawsuit to which the defendants really have no defense,
then fees may be assessed pursuant to O.C.G.A. §13-6-11. This statute is sometimes
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referred to as “bad faith” attorney’s fees. However, if, during the course of the
litigation, the actions of the opposing side and/or their attorneys operate to expand the
litigation beyond that which is reasonable, or pursue claims or defenses that have no
justiciable issues of law or fact, then a party may recovery fees associated with such
behavior and claims under O.C.G.A. §9-15-14 et seq. As a corollary, if a party incurs
damages as a result of a lawsuit beyond simply attorney’s fees, then they may have the
ability to pursue an entirely separate cause of action against the parties and their
lawyers pursuant to O.C.G.A. §51-7-80. Lastly, if the actions of the party involve activity
after the trial phase, at the appellate level, then sanctions that can be awarded for
frivolous appeals at both the Court of Appeals and the Supreme Court levels. As with
any of these statutes, the party requesting the fees is required demonstrate with
sufficient and admissible evidence: 1) the fees actually incurred, 2) a connection
between the actions of the opposing side which caused the fees to be incurred, and, 3)
whether the fees were reasonable and necessary given the circumstances.
II. PRE-SUIT BEHAVIOR GIVING RISE TO RECOVERY OF ATTORNEY’S FEES AND
COSTS
The statute governing the recovery of fees for pre-suit behavior is O.C.G.A. §13-6-
11. The statute itself is relatively short and provides:
The expenses of litigation generally shall not be allowed as
part of the damages; but where the plaintiff has specially
pled and has made prayer therefore, and where the
defendant has acted in bad faith, has been stubbornly
litigious, or has caused the plaintiff unnecessary trouble and
expense, the jury may allow them.
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This statute sets forth the general rule, i.e. the “American Rule” that everyone
bears their own costs. However, this statute is a “plaintiff friendly” statute in that it
allows a plaintiff, and a plaintiff only, the ability to recovery fees from a defendant if
their actions prior to the initiation of the claim so merit. Hence, the actions of the party
which have given rise to the litigation may also merit an award of attorney’s fees to the
plaintiff. Therefore, this statute provides plaintiffs an opportunity which they should
not squander. If the plaintiff has requested the award of fees by pleading it specifically
and then putting it in their prayer and where the defendant has acted in bad faith in
some way or caused the plaintiff some expense that it should not have had to incur, or
has just been stubbornly litigious, then attorney’s fees may be awarded. These fees are
awarded where the defendant is manipulating the system and making the plaintiff go
through the trouble of a trial and the entire litigation process when they should not have
been required to do so. The public policy argument is that the lawsuit would not have
been necessary in the first place had the defendants been reasonable and acted
according to the law. Consequently, O.C.G.A. §13-6-11 relates to acts of the defendant
and/or their counsel which occurred prior to having to file the lawsuit (i.e., their
“prefiling” conduct). Chong v. Reebaa Construction, Inc. , 284 Ga. App. 830 (2007),
judgment rev’d on other grounds, 283 Ga. 222 (2008).
a. Pleading Requirements
There are a few requirements that must be followed in order to recover such fees
from a procedural standpoint. First, the statute requires the plaintiff to ask for the
award of such fees. Hence, the plaintiff has to make certain to plead the client’s claims
for the fees in his complaint and then also specifically to pray for them in his prayer.
Neither the Court, nor the jury can simply award fees under this statute unless it has
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been pled and requested by the plaintiffs. The claim is plead as a separate count
supported by the factual allegations and then specifically prayed for in the Complaint.
As a practical point, it is important to be certain that the request for bad faith
attorney’s fees is sought throughout the litigation, including in the Pre-Trial Order, and
can be demonstrated with witnesses necessary to support the request for fees. Likewise,
it is important that the client testifies as to the fees he/she incurred and expenses paid
and that the defendants are cross examined regarding evidence that will support the
request for fees. As to the evidence of the fees themselves, the attorneys will need to
testify as to the fees and expenses incurred in addition to having the client testify as to
the bills they have had to pay. The originals of the bills and all expenses will need to be
submitted as evidence as well and a summary should be offered. Further, as this
evidence will be utilized at trial, the opposing counsel is entitled to review it in advance
of trial. Hence, the actual billing records will either need to be prepared mindful that
the opposing side will be reviewing the bills or redacted where appropriate. Failure to
properly plead the request and then insure that adequate evidentiary support is
presented at trial may jeopardize the claim for fees.
b. Plaintiff Must Prevail and Defendant’s Actions Must Warrant an Award.
The statute provides that each party bears their own costs, unless the defendants
have acted in some way to merit defendants paying the plaintiff’s fees and expenses.
Before the pre-suit actions of defendants can be deemed inappropriate, they are viewed
relative to the overall outcome of the case. If the Plaintiff does not prevail, then it
cannot be argued that the Defendant acted improperly. Therefore, the Plaintiff must
prevail in the case before bad faith attorney’s fees can be awarded him. While this is
considered a “plaintiff friendly” statute, it applies to any party who is a plaintiff as to a
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particular claim. This distinction opens the door for any party affirmatively asserting a
claim as opposed to defending a claim to recover fees. Thus, if Defendants have asserted
a counterclaim, they are “plaintiffs in counterclaim” and may also make use of this
statute. In such circumstances, the requirement for proof remains the same. Along
these same lines, where a party asserts multiple claims over the course of litigation,
attorney’s fees under this statute may only be awarded as to claims on which the party
prevails. It is reversible error for the trial court to award fees under O.C.G.A. §13-6-11
where a party fails to prove the amount of fees attributable to each claim; in other
words, evidence of attorney’s fees must be presented separately as to each claim, rather
than in a lump sum. Terrell v. Pippart, 2012 WL 660840, Ga. App. 2012.
However, this statute does not provide a mechanism for the recovery of fees for
any party defending a claim, even if they prevail. The question of whether a Defendant’s
actions warrant an award of fees under O.C.G.A. §13-6-11 is reserved for the trial court.
City of Lilburn v. Astra Group, 286 Ga.App. 568, 570 (2007). Where there is any
evidence upon which a finder of fact could properly base a finding that the Defendant’s
actions constitute bad faith or stubborn litigiousness, or caused the Plaintiff
unnecessary trouble and expense, the appellate courts will not disturb an award of fees
under this statute. Id.
III. BEHAVIOR DURING THE LITIGATION
a. O.C.G.A. §9-15-14 Motion for Attorney’s Fees
Most attorneys are familiar with the ability to recover attorney’s fees under
O.C.G.A. § 9-15-14. This statute and the companion O.C.G.A. § 51-7-80 et seq. were
designed to codify the common law principles set forth in Yost v. Torok, 256 Ga. 92
(1986). The full text of O.C.G.A. §9-15-14 is quite lengthy, but the grounds for recovery
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under this statute are defined in sections (a) and (b), set forth in relevant part as
follows:
(a) …reasonable and necessary attorney's fees and expenses
of litigation shall be awarded to any party against whom
another party has asserted 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. ..
(b) The court may assess reasonable and
necessary attorney's fees and expenses of litigation … if,
upon the motion of any party or the court itself, it finds that
an attorney or party brought or defended an action, or any
part thereof, 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…
While the proof as to the bad behavior under O.C.G.A. §9-15-14 is largely the
same as O.C.G.A. §13-6-11, the statutes operate differently. Under O.C.G.A. §9-15-14,
the request for attorney’s fees is made by motion, it is not a count of the complaint.
Consequently, an O.C.G.A. §9-15-14 motion is heard by a judge and thus, is never
offered to the jury to determine. Often attorneys file an Answer to a Complaint and then
mistakenly attempt to allege an “O.C.G.A. §9-15-14 Stubborn Litigious Claim”, but this is
procedurally in error. Nonetheless, it can create a procedural quandary as it often
forestalls a plaintiff’s automatic right to dismiss and re-file a case where the
“Counterclaim for O.C.G.A. §9-15-14” remains pending. This is incorrect. The statute
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does not provide for an independent claim. Rather, the statute provides that the request
for fees be made by a motion. Unlike, O.C.G.A. §13-6-11, where a party is required to
plead it or lose it, a motion for attorneys fees under O.C.G.A. §9-15-14 can be made
either by a party or by the Court, sua sponte.
A motion for fees can be made at any point during the course of the litigation but
in no event later than 45 days after the final disposition of the case. A number of cases
have sought to interpret “final disposition” to explain whether it means following appeal
or earlier upon a final judgment which is appealable. Hence, any judgment which is
sufficiently final such that it gives right to the ability to appeal is deemed to be final for
the purposes of the period from which the 45 days runs to file a O.C.G.A. §9-15-14
Motion. A voluntary dismissal without prejudice is not deemed as a final judgment as it
is subject to renewal. Therefore, the 45 days to seek fees as to a matter which was
voluntarily dismissed without prejudice is 45 days following the expiration of the
timeframe in which the renewal could be made.
An award can be made against both the parties and the attorneys. This creates a
possible conflict of interest situation in the event that a motion is filed. The motion may
allege that the defense or claim pursued lacks substantial justification and is not
grounded in law or fact. This may be a function of the party’s representation of the facts
to the attorney upon which the attorney relied in lodging the defense or claim. In that
situation, then the client’s failure to accurately convey the facts to the attorney may
serve as the basis for the improper claim or defense. Alternatively, the client may seek
to stall or delay the litigation and thus, direct the attorney as to a certain course of action
which may give rise to the claim for fees. However, it may be that the client conveyed
certain facts to which the attorney then determined which course of action to pursue,
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8
which law to allege or utilize and how to respond to the discovery etc. In those
circumstances, it is the client who looks to the attorney for guidance as to how to
proceed and assumes that the attorney is properly counseling and pursuing the claim or
defense. When the opposing side or the Court determines that the actions have been
improper, unnecessarily expanded the proceedings, expended for the purposes of delay
or harassment, then the client may turn to the attorney and look to him to pay any fees
that are awarded. Hence, if a motion for attorney’s fees is made as to both the party and
the attorney, it is prudent to seek separate and independent counsel in responding to
same.
The conduct which is subject to an O.C.G.A. §9-15-14 award is not always readily
defined. Rather the courts have taken, a “know it when you see it” approach. While a
trial court’s award of attorney’s fees under this statute must include findings of fact
setting forth the conduct authorizing the award, minimal guidelines are in place to
identify conduct subject to fee awards under. Carson v. Carson, 281 Ga. 296, 300
(2006). However, certain cases have defined limitations as to the behavior which may
not be subject to such an award. First, merely prevailing at summary judgment does not
automatically merit an award of attorney’s fees. Chong v. Reebaa Construction, Inc.,
284 Ga. App. 830 (2007). Likewise, prevailing in the entire case does not garner an
automatic award of attorney’s fees. Glynn – Brunswick Mem’l Hosp. Autho. v. Gibbons,
243 Ga. App. 341 (2000). Further, simply because a party was required to file a motion
to compel does not mean that the party contesting the discovery is subject to a sanction
award. Id. There is also an argument to be made that if the matter survived summary
judgment challenges, then a justiciable issue is involved by definition, and cannot be
deemed to have been frivolous. Further, if there is at least arguable support for the
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position taken, then an award of fees should not be justified. If a party is seeking to
espouse an argument in which it is known that the law in Georgia is either silent or
contrary but yet is operating on a good faith belief that the law should be changed or
interpreted differently, then it may be prudent to acknowledge at the outset the lack of
current case law on the matter or out-of-state authority or legal periodicals on the topic
to support that good faith belief. Diffusing a Court from believing that a position is
being taken simply to be contrary or for harassment may forestall an O.C.G.A. §9-15-14
motion in the first place.
b. O.C.G.A. §51-7-80 Separate Action for Additional Damages
O.C.G.A. §9-15-14 and O.C.G.A. §51-7-80 operate in tandem. O.C.G.A. §9-15-14 is
the exclusive remedy for the pursuit of fees if the only damages for the abusive litigation
is the unnecessary fees incurred. However, if a party has suffered additional damages,
such as loss of property, damage to reputation or some additional tangible loss as well as
attorney’s fees, then, in that event, the party may have a claim for abusive litigation
pursuant to O.C.G.A. §51-7-80. A full discussion as to such a lawsuit is beyond the scope
of this paper, but it is important to note a few important distinctions. First, failure to
file an O.C.G.A. §9-15-14 motion when the only damages are the attorneys fees in the
hopes that an O.C.G.A. §51-7-80 claim can be made is in error and may operate to forfeit
the fees being sought. Hence, if an O.C.G.A. §9-15-14 motion is a possibility, it is safer to
file it within the time frame allowed rather than risk the dismissal of a later O.C.G.A.
§51-7-80 claim that does not have sufficient damages beyond attorneys fees to survive.
There are certain procedural requirements that are to be met prior to the pursuit of an
O.C.G.A. §51-7-80 claim which are meant to discourage the offending party from their
offensive behavior. Specifically, a party is required to submit in writing a notice to the
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offending party those actions which are deemed to constitute abusive litigation and to
afford the offending party an opportunity to cease, desist or otherwise withdraw and
retreat from the offending behavior or to suffer a future claim as a result. As with all
other statutes which allow for the recovery of fees, the fees must be presented with
sufficient evidence to support an award of same and with O.C.G.A. §51-7-80 claims,
evidence of additional harm must be adequately demonstrated.
IV. POST TRIAL BEHAVIOR
Although not widely sought or imposed, certain rules and statutes do exist which
operate to afford parties the ability to recover fees or some form of compensation for
appeals that are taken solely for the purposes of harassment and delay. A party may
seek fees for an opposing party’s frivolous appeals. Frivolous appeal penalties are
governed under Court of Appeals Rule 15(d), which provides:
The panel of the Court ruling on a case, with or without
motion, may by majority vote impose a penalty not to exceed
$2,500.00 against any party and/or party’s counsel in any
civil case in which there is a direct appeal, application for
discretionary appeal, application for interlocutory appeal, or
motion which is determined to be frivolous.
Frivolous appeal penalties may be sought by motion. Such penalties can be awarded
“when the law is indisputably clear concerning the issues raised on appeal” Golden
Atlanta Site Dev. V. R. Nahai & Sons, 299 Ga.App. 654, 655 (1)(b), (2009). “We have
repeatedly held that a penalty for frivolous appeal may be assessed in cases where the
appellant could have no reasonable basis for anticipating reversal of the trial court’s
judgment.” Trevino v. Flanders, 231 Ga. App. 782, 783 (1998).
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Lack of supporting law will not automatically result in a frivolous appeal penalty.
However, failure to provide an appropriate record has been used to prescribe an
improper motive and knowledge that the appeal lacks any reasonable basis. Browning
Pro. V. Federal Home Loan Mortg. Corp., 210 Ga.App. 115 (1993). Similarly,
misrepresentation and concealment of controlling authority may also authorize an
award of appeal penalties. Zohour v. Zohouri, 218 Ga. App. 748 (1995).
While a penalty of $2,500.00 may not be deemed a significant sanction, there is
also the ability to have an assessment made under O.C.G.A. §5-6-6 of 10% of a money
judgment for frivolous appeals which are taken up for the purposes of delay. Thus,
construing the Court of Appeals Rule together with O.C.G.A. §5-6-6 may provide
adequate financial disincentive to actually discourage a frivolous appeal. Likewise,
under Supreme Court Rule 8 fees can be awarded for appeals which are deemed to be
abusive and taken merely for the purposes of delay and harassment.
V. PROVING THE FEES
Under any of the above-described statutes, the fees which are sought must be
demonstrated by sufficient and admissible evidence as to those fees which were
unnecessarily incurred as a result of certain and particular actions of the opposing side.
These means that the fees awarded have a direct relationship to the behavior which is
giving rise to the award of the fees. Cases are replete with examples of fees which have
been denied or reduced as they do not correlate to any particular “abusive” behavior of
the offending party or counsel. Hence, the first issue is to define what behavior was
offensive and which fees and expenses were incurred in responding or otherwise
reacting to the behavior. Clear billing records are essential as they will define the tasks
performed and their correlation to the actions of the opposing side. As evidence, the
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opposing side has the ability to review and inspect these billing records in advance of
their presentation either to the jury or a court. Therefore, the line between detailed
billing records and the disclosure of strategy and other confidential information must be
constantly considered. Hence, entries must be descriptive enough to identify the task,
the behavior and the response but not detail substantive client communications or
strategies and tactics of negotiation. Next, simply because fees were incurred and even
paid by the client does not make them reasonable or necessary. Once a determination is
made that fees for certain behavior should be awarded the amount that is to be awarded
is not ipso facto the amount incurred or paid. Rather, a second inquiry is made as to
whether the fees sought to be awarded were reasonable and necessary to respond to the
offensive behavior which merits the award. It may be prudent to introduce evidence
from an independent expert in the particular type of litigation or area of practice to
affirm that the fees incurred and sought are reasonable and commensurate with those
fees which would be incurred in the performance of such a task. Likewise, the hourly
rate may be the subject of debate as to its reasonableness. An independent expert to
substantiate the rates charged given the character of the litigation, the complexity of the
issues and the years of experience of the attorney’s commanding the rate will
substantiate the request and provide independent evidence of the reasonableness and
necessity of the fees sought.
Finally, procedural requirements should not be an afterthought. Note billing
records on the list of exhibits in discovery and, in particular, on the pre-trial order. The
same is true for the testimony of the attorney’s attesting to the fees and time spent.
Each will need to be listed in discovery as well as on the pre-trial order to insure that
they will have the ability to testify at trial. The original billing records and original
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13
expense receipts will be necessary under the best evidence requirements. Foundation
for business records will need to be established and summaries prepared to make the
records easy to digest for a judge and jury. Lastly, witnesses will need to be questioned
as to fees and expenses and be prepared for cross examination on these matters as well.
VI. CONCLUSION
Recovery of attorney’s fees for a client may mean the difference between a hallow
victory and truly being made whole. Proper pleading and attention to supporting the
claims for attorney’s fees throughout the litigation in billing records and developing the
evidence will insure that the client is provided the opportunity to seek receive
compensation for fees in the event that behavior of the defendants so warrant. The
recovery of fees is never guaranteed and certainly not automatic but should be fully
pursued and properly preserved by the attorney so as to act in the best interests of the
client and maximize recovery of all available damages.
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IDENTIFYING VALID CLAIMS –IT TAKES ALL THREE LEGS FOR THE STOOL TO STAND
Douglas C. DumontWarshauer Law Group, P.C.
Atlanta, Georgia
PLAINTIFF’S PERSONAL INJURY
IDENTIFYING VALID CLAIMS – IT TAKES ALL THREE LEGS FOR THE STOOL TO STAND
Douglas C. Dumont Warshauer Law Group, P.C.
Atlanta, GA 404.892.4900
[email protected] TABLE OF CONTENTS
I. INTRODUCTION .................................................................................... 2
II. CASE SELECTION GENERAL PRINCIPLES ........................................... 2
III. THE THREE RULES OF CASE SELECTION ........................................... 5
A. IS IT THE DEFENDANT’S FAULT? ...................................................... 5
B. HOW BADLY IS THE PLAINTIFF HURT? ........................................... 6
C. DOES THE DEFENDANT HAVE ANY MONEY? ................................... 7
D. OTHER CONSIDERATIONS ................................................................ 7
IV. PRACTICAL INTAKE OF CASES ............................................................ 8
V. CONCLUSION ....................................................................................... 9
Chapter 6 i
I. INTRODUCTION In deciding whether to accept a case, the question is not just “can you afford to take the
case?” In reality, there are really two competing questions: “Is the case financially viable
for my practice?” And, “If I take the case, can I afford to lose it?” This paper will
approach the subject from two perspectives:
1. How can we predict the financial (i.e., fee) value of a case,
including the time necessary for preparing it, and the opportunity costs a
case represents; and,
2. Even if it appears to be a good case, would losing the case be
catastrophic to my practice given the time and expense involved.
Although the topic of this paper clearly relates to financial considerations in the
business management of our practices, we cannot forget that first and foremost we are
lawyers who should, at least sometimes, take certain cases because it is the right thing to
do. Additionally, because we are a profession of lawyers who represent plaintiffs, we
must remember that if all we accept are perfect cases, then it is pretty hard to defend the
contingent fees that are the very heart of our system. Analyzing the financial issues
involved in evaluating “Slip and Fall” and “Automobile Collision” cases is, at one level
apples and oranges, as the legal liability issues in these two kinds of cases often have
very little overlap. On the other hand, the methods that should be used in analyzing a
case to see if it is viable are universal.
II. CASE SELECTION GENERAL PRINCIPLES Just about every plaintiff’s lawyer will find himself or herself handling a slip and
fall or car wreck case. These cases are usually easy to come by and are often fairly
affordable to prosecute; too often, however, they do not result in much of a financial
Chapter 6 1 of 8
reward. To many plaintiffs’ lawyers, slip and falls and car wrecks are their bread and
butter. Unfortunately, the analogy to “bread and butter” is used more often than “meat
and potatoes.” Sometimes lawyers handling these kinds of cases earn incomes that only
allow the purchase of bread not meat. The reason for this often starts at case selection.
Before evaluating a particular auto or slip and fall case to see if it should be accepted, we
need to first determine if we even want to handle these kinds of cases. Handling slip and
fall and care wreck cases can pigeon hole a lawyer as a “car wreck lawyer” as opposed to
a “malpractice lawyer” or “products liability lawyer.” Thus, the first rule in case selection
is not to take any case if you don’t want more of the same.
The second step in choosing cases, regardless of variety, is to develop a value
threshold that matches the financial needs of your particular practice. In order to do
this, the concept of “opportunity cost” must be understood. An opportunity cost is the
value a particular activity represents measured by alternative income opportunities it
replaces. For example, if an attorney has a group of cases with an average fee value of
$100,000.00, the opportunity cost of accepting a small car wreck case with a fee value
of $1,000.00 is $99,000.00, because the time expended in working on the small car
wreck could have been spent working on the more lucrative case. As Abraham Lincoln
said: “A lawyer’s time is his stock and trade.” How we spend that valuable commodity
determines our financial success or failure.
The bottom line is that no case should be selected if its value is so low that it will
prevent or slow the resolution of vastly more lucrative cases.1 That having been said, the
trial skills learned and practiced in handling car wrecks and slip and falls are invaluable
in ensuring that when the trial of a more complex or valuable case occurs, the lawyer
will have the complete skill set necessary to maximize the value of the client’s case.
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While we need to ensure that a case’s opportunity cost is not too high, it is also
important to know that a case’s expenses in time and costs are not so high that a bad
result will be a financial disaster. Evaluating whether a case will take up too much time
involves “opportunity cost” evaluation of a different sort than is described above. In this
scenario, the question is not simply a comparison of fees, but is instead a comparison of
time and what else could be accomplished with that time. The risk is that while working
on a particular case, all of the other cases in the office go unworked and the fees they
represent go unearned. This usually happens when a case, regardless of its value, takes
an inordinate amount of time because of unusual legal issues or particularly demanding
damages questions that take more than usual preparation time. The risk comes to
fruition when the case is lost, and not only is there no fee from the lost case, but there
was also a period of time when there were no fees earned from other cases either. This is
the double-whammy of taking bad cases.
The time and value opportunity costs are compounded if there are particularly
high expenses involved. In essence, a “lose, lose” situation is all too probable. While
banks are often happy to lend money so we can finance our cases, they do expect to be
paid. The “lose, lose” situation occurs when the opportunity costs of no fees earned
coincides with a loss of tens of thousands of dollars of case advances. And, if the average
case in the office is fairly small, there is no real way to recover from the loss. This
possibility can lead to making bad decisions that are not always in the client’s best
interest. Thus, in evaluating a case, these possibilities must always be at the forefront of
our decision making process.
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III. THE THREE RULES OF CASE SELECTION If lawsuits were like other assets, we could accurately evaluate a case by
calculating its present value. We would just multiply the expected fee by the expected
likelihood of success. Unfortunately, lawsuits do not readily lend themselves to a
particularly accurate form of that analysis. Case evaluation is certainly more of an art
than a science. There is a straightforward method of deciding whether a case should be
accepted. Our concept of needing three legs to make a stool stand works as well in car
wreck and slip and fall cases just as it does in other types of cases.
1. Is it the Defendant’s Fault? (LIABILITY) 2. How Badly is the Plaintiff Hurt? (DAMAGES) 3. Does the Defendant Have any Money? (RECOVERY)
A. IS IT THE DEFENDANT’S FAULT? Simply put, you need to know if reasonable people who heard the facts would
blame the situation on the defendant. The key, however, is to be reasonable and not to
sell the case to yourself as if you were selling it to the jury. Be honest about the facts and
the fleas on your case – every case has them. Bounce the facts off other lawyers, a spouse
or a friend. Does it pass the smell test? If you don’t think it’s the defendant’s fault, then
it will be a hard sell and the case should probably be rejected. Great care must be taken
to avoid being drawn into an un-winnable case by a persuasive plaintiff. Remember
when all you hear is the plaintiff’s story you have only heard the plaintiff’s story. There is
always another side of the story – you have to decide which story is better. Remember
also that the case you accept today when your caseload is low is the same case that will
have tremendous opportunity costs three years from now when you are trying to develop
a more “high-end” practice. With few exceptions, slip and fall and car wreck cases hinge
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on the ability to prove a violation of the reasonable man standard of negligence.
Sometimes this is shown by a statutory violation (such as speeding in a car wreck case)
or regulatory violation (a building code in a slip and fall case). Rule One – Reject the
Case if the event is not mostly the defendant’s fault.
B. HOW BADLY IS THE PLAINTIFF HURT? Note that this question is in the present tense. That is because there is a huge difference
in value between a case in which the plaintiff WAS hurt and is now recovered and one in
which the plaintiff IS hurt now. We also get a lot cases where the potential plaintiff
claims – perhaps correctly – that they could have been hurt. If the plaintiff has
recovered and there is any question about liability, then the case simply will not
generate large damages. We often kid in catastrophic cases that if the plaintiff is the one
calling you, then it is not a good case. If, on the other hand, the plaintiff is severely
injured, then the case might still be financially viable because the risk/return or present
value remains palatable. Case evaluation is truly a sliding scale – you can have worse
liability with high damages and lower damages with better liability (especially punitive
aspects). Multiple party car wrecks can be so complex that the time necessary to get the
case ready for its ultimate resolution can prevent them from being profitable. Even
scheduling a simple deposition can take twice as long to accomplish. Though not really
the subject of this paper, an estimate of the time and expense of the case can be made by
preparing a litigation plan at the outset. This plan will include at least the following: cost
and time of investigation, number and expense of expert witnesses (fact and damages),
cost of exhibits necessary to prove liability and damages, number of depositions
including cost and time associated with travel to get to them (and costs of transcripts,
video depositions, etc.), and the time it will take to get to trial in the venue in which the
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case will be filed (a question that must be answered as part of the evaluation process).
Rule Two - the cases should be rejected if the plaintiff’s damages are not sufficient to
generate a recovery that meets a reasonable opportunity cost. It is important to note
that the likelihood of recovery concerns first and foremost the client - not just your fee.
Is the client’s net recovery going to put him/her in a better position? Do you have to
repay loans or medical bills? If you cannot better the client’s situation financially, then
there is no reason to pursue the claim.
C. DOES THE DEFENDANT HAVE ANY MONEY? If the defendant does not have any money, (directly through his own insurance or
considerable assets or via uninsured motorist coverage), then the case should be
rejected. Slip and fall and automobile wrecks are simply not usually the place to be
“making a statement.” Rule Three – Don’t take a case if there is no money to get. From a
business perspective, Rule three is perhaps the most important. Great liability + Great
Damages + No Money or Insurance = A Bad Case.
D. OTHER CONSIDERATIONS When all is said and done, a case is about people – their actions and their
demeanors. It could be the defendant’s clear fault and the plaintiff might be seriously
injured. It could even be a simple case to prosecute. But, if the defendant is the most
beloved person in the community, and the plaintiff is a three time convicted crack
dealing child abusing pedophile there is real negative sex appeal and this must be
considered in making an evaluation and case selection decision. In considering this
element the most important consideration is the plaintiff. Will a jury like the plaintiff?
Will the jury want to award the plaintiff compensation? Did the plaintiff cause his own
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injuries? Will the jury dislike or like the defendant? Do not accept a case without
thinking about the wild card issues – for and against your case.
IV. PRACTICAL INTAKE OF CASES Now that you know in theory how to evaluate case, how do you put this
knowledge into practice? One way, which we will outline below, involves a script that
can be followed when a potential client calls. Here is an example: Hello, I am (state your
name), please let me ask you a few questions so I can make sure I connect you with the
right lawyer for your case.
1. Do you already have a lawyer at another law firm? (If so, find out if that lawyer referred them or if they are looking to change lawyers and note that here:__________________________) 2. We’re going to do all we can to help you. Are you calling for yourself or someone else? (Make sure you speak with the person who actually has the claim) _______________________________________________________________________ 3. First, please let me get some Contact Information: Please tell me your name___________________________ What’s your Address:_______________________________________________________ Phone: Home:__________________ Cell:________________ Email:_________________ Work:___________________ Best time to reach:_______________ 4. How did you hear about Our Firm? ________________________ 5. Thanks for the contact information, now let’s talk about what happened. 6. When did this event occur? 7. Where did it happen? 8. Now, tell me what kind of case you have - Med Mal Product Liab. Car Wreck Other:______ IF THE CASE IS CRIMINAL, DIVORCE, COLLECTION MATTER, ETC. PLEASE REFER THE CALLER TO ANOTHER LAWYER AND END THE CALL. 9. I am interested in your damages and injuries, so let’s talk about them for a minute. But please keep in mind that I just need the basics right now. If the injuries are totally
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trivial – the call can be politely ended here: “Gosh, that sounds serious but we might not be the right lawyers for you. Let me suggest you call …..(here either recommend the Atlanta Bar Referral service or a lawyer on a referral list.) 10. Who is responsible for your injuries? (list doctors, hospitals, manufacturers, other driver, truck company, etc.) 11. Do you have a police report? 12. Was anyone issued any tickets? 13. Was there an incident report? 14. Death case – was there an autopsy? IMPORTANT If the caller has a MALPRACTICE CASE, ask this question: If you had received the best medical care possible, how would you be different today than you are? Has this case ever been reviewed by another Attorney? Who?____________________________ What was the result of that review? _________________________ - - Other important facts:___________________________________________________
V. CONCLUSION Taking bad cases has a ripple effect and can severely cripple your practice. A
prudent, careful review of cases, however, can ensure that you have a successful practice
and that injured victims and their families recover the full compensation they deserve.
Good luck!
Chapter 6 8 of 8
HOW TO STRIKE A FRIENDLY JURYVOIR DIRE AND JURY SELECTION
Jenny E. JensenJones, Jensen & Harris
Norcross, Georgia
PLAINTIFF’S PERSONAL INJURY
1
How to Strike a Friendly Jury: How to Empanel a Jury that You
Want to Trust with Your Client’s Case!
Consider your venue, Judge, and the social and economic dynamics of the venue.
If your trial is outside your town or the greater metropolitan area, you are well
advised to obtain local counsel/friends/other attorneys to:
1. help you vet the juror list;
2. advise you about the major employers, issues and attitudes (both
social, political & religious) in the area;
3. give you information about the Judge and her or his courtroom
management style, expectations and quirks; but
4. remember not to rely on a single source, do your own research and
don’t discount your gut in favor of your local advisors.
Outline voir dire topics as you prepare for depositions.
Be sure to explore all possible contact issues with witnesses in depositions, and
compile a list as you go through discovery of individuals to watch for during voir dire.
Prepare a manner of recording juror responses and identifying jurors that will
allow you to recall and recognize them throughout jury selection. I use a list of my voir
dire questions, as well as a grid chart. I note appearance, clothing, age, race and gender
on my chart to aid in recall and to allow me to assess and prepare for Batson challenges.
After twenty plus years of practice, the forms and methods I use are constantly evolving.
Profile mentally the best and worst juror attributes(s) for your case, then expect
to lose the best, and plan how to remove the worst. Prepare yourself to conduct voir dire
in such a way that you frame questions to allow you to remove the maximum number of
potential jurors for cause – but always remember that just because you may be able to
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2
remove a juror for cause does not necessarily mean that you should – you must evaluate
your whole panel before making these judgment calls.
Consider the types of jurors that will limit or increase your damages and be sure
to include questions that address this aspect of your case, as well as proof of your case in
chief.
Call the office of your Judge and speak to the appropriate staff (they will
generally check with the Judge on one or more of these issues) about:
1. how the Judge conducts voir dire (restrictions on questions, lines of
questioning, pet peeves, etc.)1;
2. how and when follow up and individual questions are asked;
3. where the Court places the jurors (e.g. are they placed left to right,
how they are numbered, how many are placed on each row, how
many are generally in the venire, and whether they are all present at
the same time, etc.);
4. what are the Judge’s policies and practices on seating alternates
and how is their selection handled;
5. what general discussions/introductions does the Court have with
the venire and what questions, if any, the Court will ask directly of
the panel;
6. does the Judge address the use of social media, Facebook, MySpace,
Twitter, texting, blogging, emailing and the like during trial, with
the panel and, if so, what are the jurors told;
1 I also always check the bench book to see if the Judge has submitted information of this type.
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3
7. what types of information are provided by the jurors to the Court
and how soon that information can be available for review by
counsel;
8. whether the Judge allows or has allowed the use of juror
questionnaires provided by the parties and if so, under what
circumstance and how was this handled, if you would like to use a
juror questionnaire;
9. the use of number cards and the Judge’s experiences with their use;
10. how and when the Judge handles hardships and “for cause”
challenges; and
11. be sure to ask if there is anything particular that you have not
thought to ask about, regarding how the Judge handles voir dire.
I think that this contact is one that can only be made effectively by you or a well-
qualified attorney or paralegal working with you. Only someone who has participated in
striking a jury can handle this call. I find that this conversation tends to make for a
better start to trial – in my experience Judges and their staff appreciate the fact that you
are trying to prepare for and expedite the voir dire process. Gathering this information
in advance also allows you to tailor your voir dire introduction and questions to cover
any omitted areas and concerns and to allow you to make the best use of your time with
the venire.
I generally also ask about the Court’s policy regarding talking with the jurors
post-verdict so that the Court can tell the panel before selection begins that we will want
to talk to them after trial to get feedback to improve our trial presentation skills. This
allows the jurors to consider this during trial so that they are more likely to be prepared
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with thoughts for this discussion. Additionally, in my experience they are more likely to
participate if they are forewarned that this will occur after the reading of the verdict.
Prepare general and individualized voir dire questions2 – remember that a
properly conducted voir dire is a process, not just a question and answer session, and
that the goal is to get past the answers to get a feel for the individuals and their
attitudes.
Prepare, ask for and use juror questionnaires when possible and appropriate.
Especially in cases with issues that require more complex analysis, private or
embarrassing issues, and that cannot be easily dealt with during oral questioning.
See if the juror list and basic information provided is available before trial (it is in
many areas by calling ahead to the clerk’s office and jury clerk – this is where a local
counsel or contact will come in very handy) so that you can be aware of this information
2 You should be aware of O.C.G.A. § 15-12-133, which provides as follows:
In all civil cases the parties thereto shall have the right to an individual examination of the panel of jurors from which the jury is to be selected, without interposing any challenge. . . . The examination shall be conducted after the administration of a preliminary oath to the panel or in criminal cases after the usual voir dire questions have been put by the court. In the examination, the counsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the juror.
(Emphasis added.)
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for chart prep, social media check and vetting by local contacts. This is rarely possible in
the metropolitan counties but is available in some jurisdictions.
Your voir dire questions should cover, the following topics, at a minimum; be
sure to also elicit this information for the juror, their spouse and close family and
friends:
1. leadership roles held now or in the past by the juror, this
information will assist you in developing leadership profiles that
will allow you to anticipate possible forepersons;
2. topical questions that relate to the issues of your case;
3. general questions about the judicial and jury systems, as well as
damage awards;
4. prior juror service, and whether they have ever served as a
foreperson;
5. all types of relevant education and work experience3;
6. any and all contacts, no matter how minimal with parties,
attorneys, witnesses and others financially interested in the
outcome of the case;
7. the appropriateness of the individual juror for service in this
particular case;
8. hobbies and leisure activities and whether they have children;
3 I include law, law enforcement, military service, insurance industry, and the
medical and legal fields in almost every case, and then add additional topics as
warranted by the case.
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9. depending on the case, address tort reform and “excessive damage
awards,” but be prepared to show the Judge why these questions
should be allowed;
10. find out where in the county the panel members live, as well as
what they do and have done throughout their lives; and finally
11. ask about the work experience and education of their adult children
and spouses, and if appropriate grandchildren, as this is an often
overlooked area that can play a substantial role in a juror’s issue
analysis and their knowledge base.
Empower your clients to take notes and assess jurors during voir dire as their
insights can be helpful. Clients are generally quite good at identifying jurors that don’t
seem to like them, and that would thus tend to be less receptive to your client’s
testimony and case.
Give jurors a wide berth before and during jury section and trial. Discuss proper
behavior with your client and witnesses and be sure to ask your Judge to address this
with venire as early as possible, so potential jurors will not find your reserve and
behavior toward them in the courthouse to be off-putting.
Remind yourself, your staff, witnesses and clients that you are always on display
for the jury if you are anywhere near or in the courthouse, adjacent restaurants, roads,
parking structures, and elevators and govern yourselves accordingly.
Conducting Voir Dire
Consider and insist upon alternates or agreements to go with a lesser number of
jurors as necessary before selection begins.
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Consider using 8 ½ by 11 number cards (my set is gray card stock with Font 72
bolded sequential numbers printed landscape style on both sides) to assist in expediting
voir dire. Seek permission for use from your Judge and consent from opposing counsel.
Fulton County is now providing cards to the venire members themselves and this seems
to be a practice that is being adopted by more courts. I find that the use of these cards
allows us to more accurately and rapidly record the responses to general questioning.
But note that you should have the Judge explain that, “although, we appreciate and
respect that each of you are individuals, we use these numbered cards so that we can
take down information more quickly so that we can move as efficiently as possible
through the jury selection process.” This way, if the process offends a juror, then they
are less likely to hold a party accountable for their displeasure. Be very careful to use
the juror’s individual names during follow up questions and as soon as you are able to
during general voir dire.
To assist in making a good record of voir dire, which I always have taken down by
a court reporter, (see Johnson v. Leibel, 307 Ga. App. 32 (2010), judgment rev’d on
other grounds, Leibel v. Johnson, 291 Ga. 180 (2012) for an understanding of why this
can be significant), please make sure that you state on the record how the numbers flow
in relationship to the numbered juror list or get the Court to make a copy of the list a
part of the record. When taking down positive responses to the general questions, ask
jurors to hold their numbers up until they are called and then state each number aloud
and in numerical order so that it is in the record and can be recorded by your
assistant(s). The Court will occasionally take over this role. When you question an
individual juror state the juror’s name, e.g. “Ms. Jones, you are juror # 3 is that
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correct?,” and then, once the juror has been properly identified for the record, refer to
the juror by their name not number.
Bring the right amount of help – you need people who can assist you with note
taking and recall.
Before you start voir dire, know and note the racial and gender breakdown of the
panel so that you may anticipate and prepare for possible Batson challenges, both for
making them and being prepared to oppose them.
Be prepared to strike jurors for cause (more below on valid “for cause” strikes)
and brief those helping you on how to take notes to support this effort. Direct quotes
are critical to success with this effort.
Be familiar with the law on “for cause strikes,”4 biased jurors (Cambron v. State,
164 Ga. 111, (1927)), and the improper rehabilitation of jurors by the Court, (see Walls v.
Kim, 250 Ga. App. 259 (2001), affirmed by Kim v. Walls, 275 Ga. 177 (2002); and
Temples v. Central of Ga. Ry., 15 Ga. App. 115, 119 (1914)),5 and have case law to
4 Jones v. Cloud, 119 Ga. App. 697, 708 (1969); and Parisie v. State, 178 Ga. App.
857, 858 (1986) (where a party uses all of the peremptory challenges before a jury
is struck and is forced to use a peremptory challenge on a juror who should have
been stricken for cause, the error is harmful and will require reversal).
5 A trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors because, in reality, the judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury.
Id. 250 Ga. App. at 260 (emphasis added).
Running through the entire fabric of our Georgia decisions is a thread which plainly indicates that the broad general principle intended to be
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support likely strikes (e.g. defendant’s employees and stockholders, and close relatives,
(see Pickering v. Wagnon, 91 Ga. App. 610, 611-12 (1955); Seaboard Coast Line R.R. Co.
v. Smith, 131 Ga. App. 288, 290-91 (1974); Carr v. Carr, 240 Ga. 161, 162 (1977); and
Brown v. Columbus Doctors Hosp., Inc., 277 Ga. App. 891 (2006)).
Respect your juror’s time, privacy and intelligence. Ask for separate individual
voir dire of specific sensitive issues that you anticipate in advance with the Court, and
then tell the panel at the beginning of voir dire that if they need to answer any questions
in private that they can ask to do so when called upon to answer. I have considered
printing “PRIVATE” on the reverse side of my number cards so that the juror can hold
up the card when an answer needs to be addressed. Remind the venire that they can ask
to speak privately regarding any question that they prefer by simply asking.
Consider how to harness social media and how to take advantage of it ethically
during jury selection. Important Note: Please remember not to make any contact with
a potential jury during or prior to trial. No social media “friending” or the like. Also be
sure to tell your staff not to make any affirmative contact, internet or otherwise, with
possible jurors prior to or during a trial.
Remember to talk to your clients about their notes and thoughts before exercising
your strikes. Sometimes our clients are more in touch with laypeople and their reactions
applied in every case is that each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial . . . . [I]f error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors.
Id. Kim v. Walls, 275 Ga. at 178 (emphasis added).
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to our clients and their cases than we are – but at the end of the day go with your own
judgment.
Juror Oaths
It is also useful when preparing to conduct voir dire to be familiar with the oath
taken by the venire prior to voir dire:
You shall give true answers to all questions as may be asked by the court or its authority, including all questions asked by the parties or their attorneys, concerning your qualifications as jurors in the case of. . . . So help you God.
(O.C.G.A. § 15-12-132), as well as the one given to the jury:
You shall well and truly try each case submitted to you during the present term and a true verdict give, according to the law as given you in charge and the opinion you entertain of the evidence produced to you, to the best of your skill and knowledge, without favor or affection to either party, provided you are not discharged from the consideration of the case submitted. So help you God.
Preparing for and Making for Cause Strikes:
In order to advance a successful challenge for cause, one must show that either
O.C.G.A. § 15-12-134 (Challenge for favor) or § 15-12-135 (Disqualification of jurors by
relationship to party or interest in case) is applicable to a particular juror, or that one of
the relevant factors from § 15-12- 136 is applicable.
In all civil cases it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which shall succeed. Upon challenge made by either party upon either of these grounds, it shall be the duty of the court to hear the competent evidence respecting the challenge as shall be submitted by either party, the juror being a competent witness. The court shall determine the challenge according to the opinion it entertains of the evidence adduced thereon.
O.C.G.A. § 15-12-134 (emphasis added).6
6 Cambron v. State, 164 Ga. 111 (1927):
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All trial jurors in the courts of this state shall be disqualified to act or serve in any case or matter when such jurors are related by consanguinity or affinity7 to any party interested in the result of the case or matter within the sixth degree as computed according to the civil law. Relationship more remote shall not be a disqualification.
O.C.G.A. § 15-12-135 (a) (emphasis added). A juror must be set aside for cause if the juror is (a) not a citizen or resident in the
county; (b) under 18 years of age; (c) incompetent to serve because of mental illness or
mental retardation, or is intoxicated; (d) is unable to communicate in the English
language; or (e) has been convicted of a felony in the United States and has not had their
civil rights restored. O.C.G.A. § 15-12-136.
[U]pon the discovery of facts which . . . evince good reason for interest or bias in the case, the court will take judicial knowledge of the fact that in all human probability the influence disclosed would operate upon the juror and move him to act in accord therewith. . . . When, according to universal human experience, the inherent probabilities of the circumstances by which the juror is environed and to the influence of which he is to be subjected compel the conclusion, in accord with the court's judicial knowledge, that the juror will naturally be affected by his interest, it cannot be held, as a matter of law, that the juror . . . is qualified to sit in, an impartial trial as guaranteed by the constitution . . . .
Cambron, 164 Ga. at 113-14 (1927) (emphasis added). 7 “Affinity” is defined as:
relationship by marriage; sympathy marked by community of interest, an attraction to or liking for something, . . ., a person especially of the opposite sex having a particular attraction for, likeness based on relationship or causal connection . . . .
Merriam Webster Online Dictionary.
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You should have someone on your team making careful notes of any responses
made by jurors that could be used to support challenges for cause. It is very helpful to
have direct quotes from both counsel and the panel member when arguing “for cause
strikes,” and you should use caution in carefully framing questions to develop and
establish bias, leaning and affinity.
Striking Your Jury
When preparing strikes, I always carefully consider the leadership jurors on the
panel so that I can make an effort to determine and control which jurors will likely be in
charge of the jury room.
Be sure you outline your strikes before beginning selection – order your strikes so
that the jurors you think may be taken off by the other side appear toward the end of the
list. I have picked up bonus strikes by structuring my strikes this way. Also have two to
four extra strikes and make notes by all your proposed strikes, which will allow you to
act on your instincts (after appropriate consultation with your colleagues) if the
situation changes during selection. Be prepared in the same manner to make your
alternate strikes.
I like to strike on a list just like the Court’s list for my records, noting P1, P2 and
D1 and D2, as well as PA1 and DA1 for alternates, and so on, in order, but I also note and
mark struck jurors on my graph so that I can continuously visualize and reassess the
panel that each strike creates, and then confirm the accuracy of the panel when it is
placed in the box.
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After Voir Dire
Immediately draw issues relating to the jury to the Court, since the best time to
repair these problems is during, not after, trial. O.C.G.A. § 15-12-167 provides that
challenges for cause shall be made before the jurors are sworn in:
If known to a party or his counsel, any objections to a juror for cause shall be made before the juror is sworn in the case. After a juror has been found competent, no other or further investigation before triers or otherwise shall be had, provided that newly discovered evidence to disprove the juror's answer or to show him incompetent may be heard by the judge at any time before the prosecuting counsel submits any of his evidence in the case. If the juror is proved incompetent, the judge shall order him to withdraw from the jury and shall cause another juror to be selected.
(Emphasis added.)
Remember that jury selection does not end with strikes. Try to protect your
jurors from early dismissal and use openings to remove jurors that you think are not
good for your case, e.g., if they fail to show up, are tardy, sleepy, inattentive, etc. and
have case law to support your argument, before you attempt a removal. The law in this
area changes rapidly, so check before seeking to remove a juror. It is easy to call a
colleague or co-worker from Court with a discrete research question and get an email
response back quickly. Even if you are a solo with a small office, select a couple of
colleagues and let them know when you might need them, as well as a little about your
case, so they can help you with the issues that come up during jury selection.
Additionally, I always take evidence and jury selection reference materials with me to
trial as they can be very helpful when these types of issues arise at trial.
Talk to your jury after trial and ask them:
1. how you could have done a better job presenting your case;
2. what evidence they found most compelling and why; and
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3. thank them for their service and remind them how much their
service meant to your client so that they will be better informed and
more willing to serve when called again.
I make it my practice whenever I am around people who are called for jury
service, discussing jury service, or seeking assistance in getting out of jury duty, to take
the time to thoroughly discuss why juries are important and why jury service is truly an
important party of citizenship. I also make sure whenever given an opportunity to thank
people for their service and to tell them how lawyers and litigants do truly value and
appreciate their time and sacrifice.
Jury Selection is an Art, Not a Science
While almost anyone can learn to be good at preparing voir dire questions,
conducting effective voir dire and connecting with the venire is a more difficult but
achievable goal for most trial lawyers. Selecting a good jury is a gift that requires
intuition about how people are likely to react to information, as well as an ability to read
people and behavioral nuances. If you think you may lack this gift, by all means find
someone, be it a professional trial consultant or a gifted colleague, to help you with jury
selection in your cases. If you lack comfort in this area and feel that your “gut” has a
tendency to lead you astray, reach out to someone who can help. You can try a brilliant
case, but without strong jury selection skills you may not achieve your desired result and
you may well limit your damages.
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FIVE WAYS PLAINTIFFS TORPEDO THEIR CASES
Douglas K. BurrellDrew, Eckl & Farnham, LLC
Atlanta, Georgia
PLAINTIFF’S PERSONAL INJURY
1
FIVE WAYS PLAINTIFFS TORPEDO THEIR CASES
By: Douglas K. Burrell Drew, Eckl & Farnham, LLC
Atlanta, Georgia
INTRODUCTION
When I was asked to give a presentation to a group of personal injury lawyers about the five ways plaintiffs torpedo their cases, my first thought was, “Wow!” “Why should I do this? Should I give away a potential strategic advantage to lawyers who are suing my clients? And more importantly, What harm could I cause the defense bar by doing this?” Ultimately, two critical factors helped me decide that writing this paper and giving this presentation were the right things to do. First and foremost, I have the utmost respect and trust in Doug Dumont, and I know that if he asked me to do this, it would be for the right reasons. Second, I believe that I have an obligation to our great profession to do whatever I can to help make it better. Thus, I am happy to provide you with my list of the five ways plaintiffs torpedo their cases. Please note that when I say “plaintiffs,” I am also including plaintiffs’ counsel, as plaintiffs are relying on you to guide them through the litigation process and to help them obtain a favorable outcome. Also, this list is not exhaustive, and I recognize that it is subject to debate; however, it is based on my experience which, I hope, will be helpful to you. The five ways I believe that plaintiffs torpedo their cases are as follows: (1) Lack of preparation; (2) social media; (3) over-valuing the case; (4) being overconfident; and (5) making things personal. While these may be items you have heard before or intrinsically know, I have consistently found that these problem areas continue to occur and, therefore, should be discussed. I. LACK OF PREPARATION As a personal injury lawyer, you have a distinct advantage over defense counsel in that you have the opportunity to conduct an extensive pre-suit investigation of your client’s case or, if you receive the case just prior to the statute of limitations deadline, you have the opportunity to conduct an investigation during that 30-day time period that defendants have to file their answer. Either way, you have the opportunity to gather information and documents before defense counsel begins the investigation process. Usually, your ability to gather information occurs when you are communicating with a claims adjuster. I have found that those lawyers who consistently resolve difficult cases pre-suit are the ones who have thoroughly prepared their case and provided the adjuster with a demand package and supporting documentation showing the risk involved as to both liability and damages. This demand package is typically fair and reasonable under the circumstances of the case. It includes all of the plaintiff’s medical records and bills, an itemization of the medical bills, and documents and/or information showing that liability is attributable to the defendant(s). Sometimes these documents include statements from independent witnesses showing that liability appears to be against the defendant. Witness statements, while rarely produced, can have a significant impact on a case. If you have met with the witnesses and believe their story will remain consistent, then you should consider producing
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it. If the case is not resolved with the adjuster and suit is filed, the demand package is forwarded to defense counsel who, through fresh eyes, can look at the information and advise the client appropriately. Sometimes, that means taking the deposition of your client(s) and any independent witnesses to see how they will present, if the case were to go to trial. When there are multiple defendants, discovery is sometimes taken so that defendants can sort out their percentage of liability and potential contribution, if any, toward settlement. However, when critical liability and damage information is not shared early in the process, it creates questions amongst defense counsel about what may be out there that is harmful to the plaintiff. This typically makes us want to dig for more and more information, which can lead to a case lasting longer. Further, corporations and insurance companies are bureaucracies. Cases have to be discussed with other people so that they can weigh in and provide their impression of the settlement and verdict value. Therefore, the earlier the adjuster has the critical information, the greater the chance that the case can resolve sooner. If information is provided late in the process, it can be difficult for that information to get through the bureaucracy in order for there to be a reevaluation as to liability or the settlement value of the case. There have been several times that I have been at mediation when all of a sudden information is provided that was never discussed during discovery. Because adjusters or risk managers have talked with other people within their organization and obtained settlement authority, it is extremely difficult, if not impossible, for them to then go back on the date of the mediation and obtain more money. Further, providing additional information at the last minute tends to make defendant(s) skeptical as to the validity of the information. Often, that information simply is disregarded and does not factor in to the settlement value of the case. Another thing that is not helpful is bringing people to the mediation who have not previously been involved in a case. I have been to mediations where the plaintiffs’ counsel has brought in some “heavy hitter” with some type of specialized knowledge, and that person is supposed to convince my client to pay an increased amount of money. That almost never works simply because defense counsel and their clients, over the course of the case, have build a relationship with plaintiff’s attorney. To bring someone in with whom the defense has no relationship is generally not going to get the defense to change their perspective on the case. Personally, I won’t even speak to the person. If things get tight during a mediation, I am only going to talk with the person with whom I have a relationship, and it is up to that person to convince me to see things their way. I never listen to someone who comes in at the last minute because I don’t have a trust relationship with that person. As far as I am concerned, the new person doesn’t really know the case because they haven’t lived it and they will say anything out of a sense of self-importance, which makes their viewpoint untrustworthy. II. SOCIAL MEDIA From a defense attorney’s perspective, social media is one of the best weapons that we can utilize to attack a plaintiff’s case. I have found that even after a lawsuit has been filed, plaintiffs post things on their Facebook Page or Twitter Account, or send e-mails about aspects of their lawsuit that can significantly hurt their case. Therefore, it is imperative that you not only take a personal look at your client’s social media accounts, but that you advise them to stop
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posting anything until after the lawsuit is complete. You also want to make sure that you tell your client not to take down or remove any prior posts, even if those posts can be harmful to them. There is an Internet site called Internet Archive: Wayback Machine that allows one to browse over 240 billion web pages that have been archived since 1996. Thus, if your client removes items from their social networking website(s), there is a strong possibility that they will be archived and potentially used against them during their lawsuit. The other problem I tend to encounter is the use of social media during mediations. It has been my experience that plaintiffs frequently use technology to communicate with and seek input from people who are not present at the mediation. This always makes it difficult to resolve a case, because the outside people that are being communicated with are only receiving the plaintiff’s perspective. They have not heard the mediation opening statements or arguments from defense counsel about the potential problems with the plaintiff’s case, nor have they heard from the mediator or you. If your purpose is to try to resolve a case through mediation, it is important to ensure that all of the key decision makers are present, let defense counsel know who these people are, and make sure none of the people in your room are using social media to contact and receive input from others. III. DON’T OVERVALUE THE CASE In my opinion, it is extremely hard to value a personal injury case. I learned this the hard way after my mother was involved in an automobile accident and fractured her neck. She asked me to negotiate a settlement for her, and it was the most pressure that I have ever felt in the 19 years that I have practiced law. First, how do I put a true value on the case, something that wouldn’t be outrageous because I needed the insurance adjuster to engage and resolve the case pre-suit, but one that was high enough to take care of my mother’s current and future needs. Although it was difficult to value my mom’s case, the worst thing that I could have done was to significantly over-value it, which could have forced me to file a lawsuit – the one thing my mom expressly forbid. Overvaluing a case can occur a couple of different ways. First, an outrageous demand not supported by evidence can significantly impact your ability to maximize a recovery for your client. Unsupported, excessive demands are not considered credible, and your credibility, and the credibility of your client, are the essential factors in maximizing a settlement. Once you and your client lose credibility by inflating a demand, it will be difficult for you to maximize any settlement because the central issue that will drive the settlement negotiations thereafter, will be the defendant’s belief as to the value of the case, as opposed to your belief. The second way to overvalue a case is to provide outrageous or overvalued life-care plans, economist reports, pain and suffering estimates, etc. I recently received a life-care plan in a case that was so outrageous and unrelated to the underlying facts, that I told my client that we had to discount the entire life-care plan, and ultimately, we based our evaluation on other factors. In wrongful death cases, over-inflated economist reports can do the same thing. If the decedent did not graduate high school, had a sporadic work history, and was involved in some type of illegal activity, and defense counsel is presented with an economist report that assumes they would have worked until retirement age, that economist report will not be considered credible by the defense. The quickest way to get defense counsel to recommend a settlement offer to their clients is by providing credible reports. When credible reports are received, defense counsel may
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communicate that they have some disagreements with the information contained in the report, but those disagreements are not enough to make the report defective. Thus, defense counsel will generally accept the amounts set forth in your report. That’s not to suggest that you should undervalue your case, but overvaluing it certainly will cause a loss of credibility and make it more difficult for defendants to value the case as highly as you would hope. IV. DON’T BE OVERCONFIDENT Never think your case is too good. There is no such thing as “the perfect case,” and don’t ever make the mistake of believing your case is perfect. I believe that settlement is the great equalizer as it covers up all the things we wish we would have done better during the discovery phase of the case. It is important to understand the flaws in your case, and to factor them into your bottom line settlement number. Otherwise, you will get to mediation and/or trial, and find a mediator or jury that will view things differently than you do. A personal injury lawyer friend of mine, Bob Tiefenthaler, once told me, “I never underestimate someone’s ability to underestimate me.” I have always remembered that, and have adopted it when it comes to defending a case. One of the things that I find is that when a lawyer is overconfident, they often underestimate the attorney on the other side – and when we do that, it can come back to haunt our case. For example, I once attended a mediation where plaintiff’s counsel stated during his opening statement that “he had the perfect case.” The first thing I said during my opening statement, was “there is no such thing as a perfect case,” and proceeded to discuss what I perceived to be the flaws in plaintiff’s case. Unfortunately, the mediator bought in to their argument, told my client that the value of the case was 2-1/2 times where I had valued it, and the client placed significantly more money on the table during mediation, than the amount we previously discussed. Needless to say, my client was extremely upset with me, and bolstered by the mediator’s comments, plaintiff’s counsel did not accept the amount offered. We proceeded to trial in Fulton County, where a jury returned a defense verdict. As much as we like to think we know, no one knows what a jury will do. Therefore, it is important not to be overconfident in the facts of your case, and to not underestimate the potential flaws in it. If you evaluate your case properly, chances are you will achieve the settlement amount that you anticipated, and your client will be happy. V. DON’T TAKE THINGS PERSONALLY When a case becomes personal, in some ways you have already lost. I don’t mean don’t become personally involved in the case because you like your client – that can be a good thing. What I mean is don’t take any of the ebbs and flows in the case personally, because, when things become personal, your ability to think reasonably and rationally can become cloudy. It is hard to make good decisions for your client if you become personally involved in the case. I have found that when lawyers assume that the other side is conducting discovery in bad faith or negotiating in bad faith, or any number of other things, they tend to lose sight of the real objective and the goal of the case, which is to resolve it either at mediation or at trial, for an amount that is
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favorable to the client. When attorneys begin getting into major side battles, it can impact one’s ability to favorably resolve a case. For instance, if your client has told you that they do not want to go trial, then it is not in your best interest to get into a personal battle with the other side. You will lose credibility in that case and others if you threaten to try the case, but know you can’t do it and you ultimately settle it. You will also lose credibility if you argue or make accusations against the other side and then ultimately settle. And finally, you will lose the ultimate amount of respect and credibility if you will not listen to reason, take the case to trial, and lose. Working with the other side in a professional manner is the ultimate way to resolve the cases in most beneficial way to your client. I recently had a case with a prominent trial attorney whom I thought was going to take the case to trial. On the Monday prior to trial, we were exchanging exhibits when the attorney told me that his client was interested in settling the case if it would be for a fair amount. Up until that point, I thought there was no way that case was going to settle, and part of the reason was that my client was taking a hard and difficult line toward settlement. That simple overture by plaintiff’s counsel that was non-posturing ultimately led to the case being resolved. At that time, the attorney was on a roll winning trials, so I was sure that he was going to take the case to trial if we did not get it resolved, and he could have taken my client’s hard-line position personally. Instead, he looked out for the best interest of his client, and we negotiated during the course of a week and came to a favorable resolution. From my perspective, my client paid a little more than what they wanted to, but the case was resolved.
CONCLUSION
So, the bottom line here is this: If you want to resolve cases quickly and maximize the amount you receive in a settlement or verdict, fully prepare your case as soon as possible, restrict your client’s use of social media, don’t over-value your case, don’t be over-confident, and don’t take things personally. If you follow these time-tested rules, you will put yourselves in a position to maximize your settlements and/or verdicts.
3569617/1 00001-010001
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REPRESENTING VICTIMS OF CRIMINAL ACTS
APPORTIONMENT IN 2013
Andrew T. RogersDeitch & Rogers, LLC
Atlanta, Georgia
PLAINTIFF’S PERSONAL INJURY
REPRESENTING VICTIMS OF CRIMINAL ACTS
APPORTIONMENT IN 2013
Table of Contents
Joinder and Apportionment statutes p. 3
Pattern Jury Charges p. 5
Clark v. Rush, 312 Ga. App. 333 (2011) p. 7
Bailey v. Annistown Road Baptist Church, Inc., et al., 301 Ga. App. 677 (2009) p. 9
Royalston et al. v. Middlebrooks, 303 Ga. App. 887 (2010) p. 12
Royalston et al. v. Middlebrooks, Judgment p. 14
McReynolds v. Krebs, 307 Ga. App. 330 (2010) p. 16
McReynolds v. Krebs, 290 Ga. 850; (2012) p. 17
Herrera v. Miles Properties, Inc., 8/20/10 VERDICT p. 19
Lackey v. Housing Auth. of City of Covington, 10/15/10 VERDICT p. 20
Veasley v. Tel Star Alarms, Inc., et al., 10/18/11 ORDER p. 21
Union Carbide Corp. et al. v. Fields et al., 315 Ga. App. 554 (2012) p. 23
Polston v. Boomershine, 262 Ga. 616 (1992) p. 26
Couch v. Red Roof Inns, Inc. et al., 291 Ga. 359 (2012) p. 26
GFI Mgmt. Svcs., Inc. v. Medina, 291 Ga. 741 (2012) p. 26
Polite v. Double View Ventures, 9/14/12 VERDICT p. 27
ANDREW T. ROGERS
DEITCH & ROGERS, LLC The Crime Victim Law Group
5881 Glenridge Drive Plaza 400, Suite 160 Atlanta, GA 30328
770/394-9000 [email protected]
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§ O.C.G.A. § 9-11-20. Permissive joinder of parties (a) Permissive joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief and against one or more of the defendants according to their respective liabilities. (b) Separate trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him and may order separate trials or make other orders to prevent delay or prejudice.
§ 51-12-31. Recovery against joint trespassers Except as provided in Code Section 51-12-33, where an action is brought jointly against several persons, the plaintiff may recover damages for an injury caused by any of the defendants against only the defendant or defendants liable for the injury. In its verdict, the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally.
§ 51-12-33. Reduction and apportionment of award or bar of recovery according to percentage of fault of parties and nonparties (a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault. (b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be
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awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution. (c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit. (d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault. (2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault. (e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section. (f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties. (2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action. (g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.
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PATTERN JURY CHARGES
66.810 Tort Damages; Apportionment of Damages
(Note: This charge is obviated by giving charges 60.140 or 60.141.) When a case is filed against more than one person for injury to person or property and the plaintiff is, to some degree, responsible for the injury or damages claimed, the jury, in its determination of the total amount of damages to be awarded, if any, may apportion its award of damages among the persons who are liable and whose degree of fault is greater than that of the injured party. If apportioned by the jury as provided in this charge, damages shall be the responsibility of the person or persons against whom they are awarded only and shall not be a joint liability among the persons liable and shall not be subject to any right of contribution from another defendant.
O.C.G.A. §51-12-33
60.140 Torts; Equal Negligence; No Recovery (One Tortfeasor Only)
Give charge below ONLY when negligence of plaintiff is an issue. Giving this charge obviates the use of 66.810. Pay close attention to the relevant code sections. There may be scenarios that are not covered by this charge. If you find by a preponderance of the evidence the defendant negligent so as to be liable to the plaintiff and it is contended the plaintiff is also negligent in some degree, thereby contributing to his/her injury and/or damage(s), then you are required to determine the percentage of the plaintiff's fault. This contributing fault does not preclude the plaintiff from recovering damages against the defendant, unless you find the plaintiff is 50 percent or more responsible for his/her injury or damage(s) claimed. Therefore, the plaintiff is not entitled to recover any damages if he/she is 50 percent or more responsible for the injury or damage(s) claimed. O.C.G.A. §51-12-33
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60.141 Torts; Comparative Negligence (Joint Tortfeasors and Non-Parties)
Give charge below ONLY when negligence of plaintiff is an issue. Giving this charge obviates the use of 66.810. Pay close attention to the relevant code sections. There may be scenarios that are not covered by this charge. Where the alleged negligence is against more than one person (or entity) (whether named in this action or not) and it is contended the plaintiff is also negligent in some degree, the plaintiff is not precluded from recovery against a defendant, unless you find he/she is 50 percent or more responsible for his/her injury or damage(s) claimed. However, you shall determine the percentage of fault of each person (or entity) (whether named in this action or not), including the percentage of plaintiff's fault, if any, where the plaintiff's fault is less than 50 percent responsible for any injury and/or damage(s) claimed. You shall apportion the total award of damages, if any, among the persons (or entity/entities) who are liable to the plaintiff by a preponderance of the evidence according to the percentage of fault of each person (or entity/entities) as reduced by the amount of damages otherwise to the plaintiff in proportion to his/her percentage of fault. This apportionment of damages shall be the liability of each person (or entity/entities) against whom the damages are awarded and shall not be joint liability among the persons (or entity/entities) liable, nor shall it be subject to any right of contribution from another defendant. Remember, the plaintiff is not entitled to recover any damages if you find the plaintiff is 50 percent or more responsible for the injury or damage(s) claimed. O.C.G.A. §51-12-33 Clark v. Rush, 312 Ga. App. 333 (2011)
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CLARK v. RUSH. 312 Ga. App. 333; 718 S.E.2d 555 (2011)
In cases of comparative negligence, OCGA § 51-12-33 (a) requires the jury to determine the percentage of fault borne by the plaintiff and report that percentage to the judge, but the statute assigns the task of reducing the damages award accordingly to the judge. We have cautioned before that OCGA § 51-12-33 (a) seems to require such a procedure,1 [**557] but it appears that the pattern jury charge on comparative negligence has not been revised to accommodate the procedure that the General Assembly adopted in 2005. Today, we conclude that the pattern instruction on comparative negligence no longer is an accurate statement of law.
1 See, e.g., Turner v. New Horizons Community Svc. Bd., 287 Ga. App. 329, 330-331 (651 SE2d 473) (2007) (OCGA § 51-12-33 (a) "shows legislative approval of a procedure under which the trial court reduces the jury's damage award in proportion to the degree of fault the jury attributes to the plaintiff"); Decatur's Best Taxi Svc. v. Smith, 282 Ga. App. 731, 733 (2), n. 2 (639 SE2d 482) (2006) ("We note that pursuant to Senate Bill No. 3, Ga. L. 2005, commonly known as the Tort Reform Act of 2005, the calculation of the proportional reduction of damages is now to be performed by the judge following a jury's determination of the parties' respective percentages of fault.").
OCGA § 51-12-33 (a). The statute sets out this procedure for the reduction of damages for comparative negligence in clear and unambiguous terms.5 When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and [**559] said what it meant, see Northeast Atlanta Bonding Co. v. State, 308 Ga. App. 573, 577 (1) (707 SE2d 921) (2011), and we must bear in mind that, "[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden." Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003); see also Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010). [***10] We have suggested in dicta in several prior decisions that the current version of OCGA § 51-12-33 (a) requires such a procedure, see note 1 supra, and we hold today that it does.
5 The statute does not explicitly state that the jury must return a special verdict identifying the percentage of fault attributable to the plaintiff, but that is implicit, given the explicit requirements that the jury determine the percentage of fault and that the judge reduce any damages award in proportion to the percentage determined by the jury. Without a special verdict, the judge could not know the percentage by which he is to reduce the damages award.
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The statutory procedure for reducing a damages award for comparative negligence differs in two significant respects from the procedure embodied in the pattern charge. First, the statutory procedure requires the jury, if it finds comparative negligence, to quantify the fault of the plaintiff in precise terms by determining the [*337] "percentage of fault of the plaintiff." OCGA § 51-12-33 (a). The pattern charge, on the other hand, does not require the jury to quantify the fault of the plaintiff so precisely, although it does allow it. Instead, the pattern charge [***11] directs the jury to determine the "proportion" of negligence attributable to the plaintiff, see Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.) § 60.141, which equally suggests that a jury may decide comparative negligence based on a mere rough proportionality of fault or on a more exact and quantified percentage of fault attributable to the plaintiff. Second, by requiring that the jury make a factual finding as to the percentage of fault attributable to the plaintiff and committing any reduction of the damages award to the judge, see OCGA § 51-12-33 (a), the statutory procedure ensures that the legal consequences of a finding that a plaintiff bears responsibility for a certain percentage of fault for his injuries are truly reflected in the verdict and judgment. The procedure established by the pattern charge leaves the parties to wonder whether the jury found comparative negligence at all and, if so, correctly reduced the damages to be awarded the plaintiff in proportion to the degree of his negligence. We conclude, therefore, that both the existing pattern charge on comparative negligence and Underwood, 105 Ga. App. at 340, the case on which the pattern charge [***12] is based, have been superseded by OCGA § 51-12-33 (a), as amended in the Tort Reform Act of 2005.
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BAILEY v. ANNISTOWN ROAD BAPTIST CHURCH, INC. et al. 301 Ga. App. 677; 689 S.E.2d 62 (2009)
Before accepting the verdict, the court and the parties realized that in response to one or more of the jury's questions for the court, the jury had not been fully charged with the applicable law of apportionment of damages under OCGA § 51-12-33 (g). The jury had not been told that if it found Bailey 50 percent or more at fault, [***9] she stood to recover nothing from the County. The court elected to charge the jury on this point of law and ask it to deliberate again and [*681] complete a modified blank jury form. The County objected to the re-deliberation. This time, the jury made the same findings regarding trespass, nuisance and damages, but it found Bailey only 49 percent at fault for nuisance damages and found that the County and ARBC were at fault by 25 percent and 26 percent, respectively, for the relevant one-year time period applicable to the County.
In its final judgment, the trial court stated that the second verdict "more accurately reflect[ed] the intent of the jury." But the court ultimately decided that the second verdict could not be accepted over the County's objection. It reasoned that although it should have properly charged the jury initially, neither party had requested a charge on subsection (g) in writing, and Bailey did not object to the court's response to the jury's question wherein the court failed to charge on subsection (g). Therefore, the court entered judgment on the first verdict, which, because of the finding that Bailey was 50 percent at fault for any nuisance, resulted in an award of [***10] zero dollars on the nuisance claim against the County under OCGA § 51-12-33 (g). Bailey was awarded a total of $ 81,249 against ARBC -- the sum of the nuisance and trespass awards against the church.
….
2. Bailey contends the trial court erred by refusing to accept the jury's second verdict. We agree. Prior to beginning deliberations, the jury was charged with only a part of the law regarding reduction and apportionment of damages under OCGA § 51-12-33. The jury was not charged with subsection (g), which states that the plaintiff may not recover if he or she is 50 percent or more responsible [***13] for the injury or damages claimed. During the deliberations, the jury asked the court several questions about apportionment of damages that revealed confusion among the jury, as well as counsel, about apportionment of damages and how to use the verdict form that had been prepared by the court to show the correct apportionment. The court attempted to answer the questions and it gave additional charges, but the jury was still not instructed on subsection (g). The jury returned a verdict finding that Bailey was 50 percent at fault.
The jury was sent out, and the court and attorneys began to discuss the verdict and the failure to charge subsection (g) became apparent. The court and the attorneys realized that there were other flaws in the verdict form as well. The court reached a point of concluding
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that a mistrial was a possibility because of the jurors' confusion with the form and the law. So the court chose to send the [*683] jury out with a modified verdict form and with a charge that included OCGA § 51-12-33 (g). This time the jury found Bailey to be 49 percent at fault.
We find that the court erred by entering judgment on the first verdict. The court erroneously found that it was bound to [***14] do so because there was no case law holding that the jury must be instructed on subsection (g) and that, although it should have given the charge, it was not error to do so because Bailey had not made a written request to charge subsection (g) and had not made a separate objection regarding subsection (g) in response to the court's charges. We hold that the court had the authority and duty to instruct the jury to reconsider the verdict once a substantial error in the charge was discovered even though the plaintiff had not objected to the court's actions. DeKalb County v. McFarland, 231 Ga. 649, 656 (2) (y) (203 SE2d 495) (1974); Lowery v. Morton, 200 Ga. 227, 229 (36 SE2d 661) (1946). "[I]t is not error for a trial judge not to receive an improper or imperfect verdict, and to cause the jury to retire and put their verdict in proper form." Lowery, 200 Ga. at 229. Here, the jury's questions and the lengthy discussion among counsel and the court show that the charges and the verdict form created substantial uncertainty about the meaning of the jury's initial decision. At that point the court made the correct decision:
Whenever a verdict is ambiguous and uncertain in its meaning or does [***15] not cover a substantial issue made by the pleadings in the case upon which proof is offered, it is proper to have the jury retire again for the purpose of rendering another verdict, under [**70] proper instructions from the court. It is better to do this than to receive the verdict, which would probably have to be set aside on a motion for a new trial, resulting in the expense and trouble of another trial.
(Citations and punctuation omitted.) Id.
And under the facts of the case, the initial failure to charge on subsection (g) was harmful as a matter of law. Given the charges to the jury and the verdict form, it is clear that the jury was initially erroneously instructed that Bailey's award would be reduced only by Bailey's degree of fault no matter what percentage the jury found. Thus the jury's initial decision showed an intent to reduce Bailey's award by only 50 percent, not 100 percent. Once the jury was fully instructed, the jury confirmed that intent in the second verdict, and the court was required to enter judgment in accordance with that intent. "A judgment must conform to the verdict (OCGA § 9-12-9); and likewise it must follow the true meaning and intent of the [*684] finding of the jury." [***16] (Citations and punctuation omitted.) C&S/Sovran Corp. v. First Fed. Sav. Bank &c., 266 Ga. 104, 108 (3) (463 SE2d 892) (1995). 2
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2 See generally Pearson v. Tippmann Pneumatics, 281 Ga. 740, 744 (3) (642 SE2d 691) (2007) (incomplete and inaccurate jury charges on legal principles that go to the crux of the plaintiff's case are substantial and harmful as a matter of law). See also Lawyers Title Ins. Corp. v. New Freedom Mortg. Corp., 288 Ga. App. 350, 352 (1) (654 SE2d 190) (2007) (crux of the defense).
We therefore vacate the judgment below and remand with instruction to enter judgment in accordance with the second verdict.
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ROYALSTON et al. v. MIDDLEBROOKS. 303 Ga. App. 887; 696 S.E.2d 66 ( 2010)
Collie M. Middlebrooks filed a personal injury action against Kimberly Davis, John Spencer Royalston, and Georgia Sandwich Company, Inc. ("GSC"), Royalston's employer, seeking damages for injuries he sustained in a multi-vehicle collision. The jury awarded Middlebrooks compensatory damages in the amount of $ 3,064,836, punitive damages in the amount of $ 1,000,000, 1 and attorney fees and expenses in the amount of $ 621,780.96. Royalston and GSC appeal, asserting that the trial court erred when it denied their motions for directed verdict and for judgment notwithstanding the verdict ("j.n.o.v.") and their motions in limine, which sought to exclude the testimony of two witnesses. Appellants also assert as error the admission of testimony regarding Royalston's workers' compensation claim, the trial court's charges to the jury on reckless driving, speeding, and improper lane change, the denial of their motion for new trial; and the denial of their motions for directed verdict and for j.n.o.v. on punitive damages and attorney fees. [*888] Finding no error, we affirm.
Viewed in the light most favorable to the verdict, 2 the evidence shows that at approximately 7:00 a.m. on July 28, 2005, Middlebrooks, who was driving a pickup truck, traveled north on Maxham Road to its intersection with Salt Springs Place, where he stopped in the left-hand lane to make a left turn. While waiting to turn, Middlebrooks saw Royalston's truck, which was driving [**69] south on Maxham Road, switch from the outside to the inside lane. At that moment, Middlebrooks was rear-ended by Davis's car and the front end of his pickup truck was struck forcefully by Royalston's delivery truck. Middlebrooks testified that although he saw Royalston approaching, there was nothing that he could do to avoid the accident, so he kept his foot on the brake and braced for the impact. Middlebrooks did not know whether the rear-end impact pushed him forward or across the centerline, and he did not see Royalston's truck cross the centerline.
2 Davenport v. Yawn, 297 Ga. App. 685, 688 (2) (678 SE2d 148) (2009).
Middlebrooks testified that he was extricated from his vehicle after the door and dashboard of [***3] his truck were removed by emergency personnel; that he was taken to the hospital, where he lay in traction for ten days; and that he had surgeries on his hip and wrist and remained in the hospital for two months, during which time he learned how to walk again. Middlebrooks had a total of four surgeries, the last of which occurred in January 2009. He also testified that he was planning to have another surgery on his wrist and that one of his legs was now shorter than the other, requiring him to wear a foot insole for the rest of his life.
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Royalston testified that he began his employment as a delivery driver with GSC in June 2004; 3 that his first delivery stop was located approximately 15 or 20 minutes from GSC; and that the accident occurred while he was en route to his first stop. Royalston further testified that he had a good view of the northbound traffic approaching as he traveled in the inside southbound lane of Maxham Road; that he did not see Davis rear-end Middlebrooks; that he did not see Middlebrooks's truck until Middlebrooks hit him; and that the impact was such that he thought Middlebrooks was dead. Davis testified that she was responsible for rear-ending Middlebrooks's [***4] truck and that she was cited for following too closely, to which she pled guilty.
Thomas Phillip Langley, a traffic accident reconstructionist, testified that based on his investigation of the scene and vehicles involved, he concluded that Davis's car struck the right rear [***5] of Middlebrooks's truck, forcing it to rotate into the oncoming lane of travel and move about 20 feet before it stopped; that Royalston's truck, which was 18 feet long and traveling at a speed of 45 to 50 miles per hour, swerved to the right before striking the front end of Middlebrooks's vehicle; and that Royalston could have avoided the collision. Langley opined that based on Middlebrooks's testimony, approximately two to four seconds passed between the time that Middlebrooks was rear-ended and when he saw Royalston's truck coming at him; and that assuming Royalston was traveling the speed limit of 45 miles per hour, he had 3.76 to 5.76 seconds to react, during which time he could have stopped his truck 60 to 200 feet away from Middlebrooks's vehicle.
5. In their fifth enumeration of error, appellants contend that the trial court should have granted their motion for new [**72] trial because the jury apportioned damages in a manner that was unreasonable and contrary to the evidence, in violation of OCGA §§ 51-12-33 (b) and 13-6-4. OCGA § 51-12-33 (b) provides, in pertinent part, that "[w]here an action is brought against more than one person for injury to person or property, the trier of fact . . . shall . . . apportion its award of damages [***13] among the persons who are liable according to the percentage of fault of each person." OCGA § 13-6-4 [*893] provides that "[t]he question of damages being one for the jury, a reviewing court should not interfere unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias." In the instant case, the jury found that Davis, the driver who rear-ended Middlebrooks, was 42 percent at fault and that Royalston was 58 percent at fault. "[I]n arriving at how to express these different degrees of culpability in mathematical terms, the jury was not bound by any specific formula; instead, the matter was to be 'determined according to the enlightened conscience of the fair and impartial jury.'" 21 Although Davis caused the first impact, there was evidence in the case that Royalston could have avoided the impact that caused Middlebrooks's severe injuries. Based on this evidence, we cannot conclude that the jury's apportionment of damages was the product of gross mistake or undue bias.
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McREYNOLDS v. KREBS. 307 Ga. App. 330; 705 S.E.2d 214 (2010)
Addressing the issue raised by that language, this Court has recently held that under OCGA § 51-12-33, a trier of fact is required to apportion its award of damages among multiple defendants even when the plaintiff bears no fault. Cavalier Convenience, Inc. v. Sarvis, 305 Ga. App. 141, 699 S.E.2d 104 (2010…Following Cavalier, we conclude that apportionment is required in this case even though it is undisputed that Krebs was not at fault.
The remainder of the Code section explains the procedure to be followed for apportionment. Subsections (c) and (d) explain that apportionment is to be determined based on the fault of all parties liable for the plaintiff's injuries regardless of whether they are parties to the suit, including parties who have settled with the plaintiff. 2 Subsections (a), (b) & (f) provide that the trier of fact shall apportion the plaintiff's damages based on the percentage fault of parties and nonparties. 3 Finally, subsection (b) provides that when apportionment is required by the Code section, the defendants have no right of contribution:
Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each [*8] person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
OCGA § 51-12-33 (b). Thus, GM was not required to be a party to the suit after it settled, and McReynolds had no claim of contribution. We also see no basis for set-off given that the statute requires each liable party to pay its own percentage share of fault and McReynolds presented no evidence regarding GM's alleged fault. See generally Broda v. Dziwura, 286 Ga. 507, 509 (689 SE2d 319) (2010) ("The applicability of a set-off is predicated on the settling party being liable, at least in some part, for the plaintiff's injury.").
Given that OCGA § 51-12-33 requires apportionment of damages in cases such as this regardless of whether GM is a party, that GM had settled with the plaintiff, and that McReynolds had raised no other valid claim against GM, the trial court did not err by granting GM's motion to dismiss. But see Murray v. Patel, 304 Ga. App. 253 (696 SE2d 97) (2010) (finding error in the dismissal of a third-party defendant who could be liable for his share [*10] of an apportionment of damages under OCGA § 51-12-33).
2. McReynolds contends the trial court erred by ruling that she could not cross-examine Krebs on the difference between her complaint, in which she alleged that GM was partially at fault for her injuries, and her answers to discovery, in which she denied the same
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allegations. "[T]he admission of evidence is generally committed to the sound discretion of the trial court, 'whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion.' [Cit.]" Cooper Tire & Rubber Co. v. Crosby, 273 Ga. 454, 457 (2) (543 SE2d 21) (2001).
First, with regard to the complaint, the allegations in the plaintiff's complaint do not amount to evidence of GM's liability; "opinions and conclusions in the pleadings are not admissions in judicio." Crosby v. Cooper Tire & Rubber Co., 240 Ga. App. 857, 866 (7) (b) (524 SE2d 313) (1999), rev'd on separate grounds, Cooper Tire & Rubber Co. v. Crosby, 273 Ga. 454, 543 S.E.2d 21, supra; Howell Mill/Collier Assoc. v. Pennypacker's, Inc., 194 Ga. App. 169, 172 (2) (390 SE2d 257) (1990). Second, Krebs amended her complaint with the pretrial order wherein she did not allege that GM had liability for [*11] her injuries. Cooper Tire, 240 Ga. App. at 866 (7) (a). Third, the fact that McReynolds added those allegations to her own statement of the case in the pretrial order does not authorize their admission as evidence against GM.
3. McReynolds contends, in the alternative, that the trial court should have apportioned damages between her and GM. But despite being given extra time in discovery to pursue the matter, McReynolds admitted at the beginning of trial that she had no evidence to present regarding GM's liability. And McReynolds [*12] rested following the plaintiff's case without presenting any evidence whatsoever. She therefore presented no evidence on which apportionment of liability could be based. And she waived any issue with regard to the verdict form.
McREYNOLDS v. KREBS. 290 Ga. 850; 725 S.E.2d 584 (2012)
McReynolds appealed the trial court’s rulings on the cross-claims and other matters, but the Court of Appeals affirmed. McReynolds v. Krebs, 307 Ga. App. 330 (705 SE2d 214) (2010). We granted certiorari to consider two [***2] questions: (1) Did the Court of Appeals correctly construe OCGA § 51-12-33 to re- quire a trier of fact to apportion an award of damages among multiple defendants when the plaintiff is not at fault?; and (2) Did the Court of Appeals correctly find that McReynolds’s insurer made a counteroffer in response to Krebs’s settlement demand? Having decided that the answer to both questions is yes, we affirm.
To the contrary, while both subsection (a) and (b) open with the same broad statement of applicability (“Where [***6] an action is brought against one or more persons for injury to person or property … .”), only subsection (a) adds the qualifying language, “[w]here … the plaintiff is to some degree responsible for the injury or damages claimed.”
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Moreover, HN5 “[t]he applicability [***8] of a set-off is predicated on the settling party being liable, at least in some part, for the plaintiff’s injury.” Broda v. Dziwura, 286 Ga. 507, 509 (689 SE2d 319) (2010). Despite having ample opportunity to develop evidence against GM, McReynolds conceded at the beginning of the trial that she had “no evidence regarding GM’s potential liability other than the allegations in Krebs’s complaint.” McReynolds v. Krebs , 307 Ga. App. at 332. See also id. at 334-335 (explaining why there was no competent evidence of GM’s fault). The lack of evidence on which apportionment could be based also defeats McReynolds’s claim that she was entitled to apportionment under OCGA § 51-12-33 (c) and (d) on the ground that GM was a non-party which was partially at fault for Krebs’s injuries and which entered into a settlement agreement with Krebs.
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UNION CARBIDE CORPORATION et al. v. FIELDS et al., 315 Ga. App. 554; 726 S.E.2d 521 (2012)
The Fieldses moved for partial summary judgment on the issue of nonparty fault, seeking to preclude Defendants from presenting the potential fault of numerous nonparty entities for purposes of apportioning Defendants' potential damages. The trial court granted the Fieldses' motion.
1. Fieldses' Motion for Partial Summary Judgment. In their respective answers, each Defendant in this case affirmatively pled the defense of nonparty fault, seeking to attribute fault to nonparties to the litigation instead of themselves. Pursuant to a 2005 amendment, Georgia law permits the allocation of fault to a nonparty for purposes of apportioning damages among the named defendants. See OCGA § 51-12-33 (c) ("In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, [***5] named as a party to the suit.")… "Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties," and findings of fault against a nonparty "shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action." (Punctuation omitted.) OCGA § 51-12-33 (f) (1), (2). Thus, under this State's statutory scheme, the effect of a successful nonparty defense is the reduction of the plaintiff's potential award and the defendant's possible liability. As with other affirmative defenses, Defendants have the burden at trial to prove the defense of nonparty fault. Cf. Hodge v. SADA Enterprises, 217 Ga. App. 688, 691 (2) (458 SE2d 876) (1995) (indicating that a defendant has the burden at trial to prove affirmative defenses of contributory and comparative negligence)….
Here, as required by OCGA § 51-12-33 (d),2 Defendants filed their respective notices of [***6] nonparties at fault. The Fieldses moved for partial summary judgment regarding Defendants' nonparty defense as it pertained to 51 entities designated in Defendants' notices. The Fieldses asserted that the Defendants had failed to produce any evidence creating a jury question as to whether these nonparties were responsible for any asbestos-containing products to which Mrs. Fields was exposed. The trial court granted the Fieldses' motion with respect to 45 specific entities, as well as any other nonparty identified or [*557] described in Defendants' notices of nonparty fault; as a result, the jury will be precluded from assessing the potential fault of these nonparties for the purposes of apportioning damages among Defendants.
(a) Georgia Power. Defendants assert that it was error for the trial court to grant the Fieldses' summary judgment motion as to nonparty Georgia Power, asserting that even
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if Georgia Power owed no legal duty to Mrs. Fields, it could still be at fault for purposes of apportioning damages under OCGA § 51-12-33 (c). We disagree….
Here, however, Defendants cannot present any evidence from which a jury could conclude that Georgia Power was at fault. Georgia Power was the entity that employed Mrs. Fields' father during the relevant time period. And in Georgia, an employer owes no "duty of care to a third-party, non-employee, who comes into contact with its employee's asbestos-tainted work clothing at locations away from the workplace." CSX Transp. v. Williams, 278 Ga. 888, 891 [*558] (608 SE2d 208) (2005). "In the absence of a legally cognizable duty, there can be no fault or negligence." (Citation omitted.) Ford Motor Co. v. Reese, 300 Ga. App. 82, 84 (1) (a) (684 SE2d 279) (2009). Thus, Georgia Power bore no "fault" that could be assessed under OCGA § 51-12-33, and it was proper to grant summary judgment on Defendants' nonparty defense as it pertained to Georgia Power….
(i) Pursuant to OCGA § 51-12-33 (d) (1), the "[n]egligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault." According to Defendants, the language of OCGA § 51-12-33 (d) (1) "singles out settled parties" and requires the automatic consideration of their fault for purposes of apportioning damages among Defendants. Defendants' interpretation of the statute is erroneous. See Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) ("Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.") (citation omitted); ALLTEL Ga. Communications Corp. v. Ga. Public Svc. Comm., 270 Ga. 105, 107 (505 SE2d 218) (1998) (viewing statute "as a whole to construe all parts of a statute together to make all its parts harmonize") (citation, [***11] punctuation and footnote omitted). By its plain terms, a nonparty's fault "shall be considered" in either of the two situations -- either where the nonparty has settled with the plaintiff or where the nonparty has been identified by the defendant in a timely and proper notice of fault.3 See OCGA § 51-12-33 (d) (1). Moreover, when OCGA § 51-12-33 (d) (1) is read together with OCGA § 51-12-33 (c), a defending party still must show [**526] that a settled entity "contributed to the alleged injury or damages" before its fault can be assessed by a trier [*559] of fact. Otherwise, there would be no basis for the apportionment of fault between the settled entity and the defendant. See McReynolds v. Krebs, 307 Ga. App. 330, 334 (1), 335 (3) (705 SE2d 214) (2010) (rejecting defendant's contention that trier of fact should have apportioned damages between her and a settled party where the defendant presented no evidence on which apportionment of liability could be based and thus waived any issue with regard to the verdict form). We therefore decline to interpret OCGA § 51-12-33 (d) (1) as requiring a trier of fact to automatically consider the potential fault of a settled entity….
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(3) As explained in the above subdivision, the fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact "contributed to the alleged injury or damages." OCGA § 51-12-33 (c).4 Given this focus on the concept of causation in OCGA § 51-12-33 (c), we turn to the causation standards imposed upon a plaintiff in an asbestos product liability case.
Union Carbide further contends that even assuming a "mixed exposure" causation theory was based on reliable expert testimony, there is no evidence that Mrs. Fields was exposed to amphibole asbestos. In support, Union Carbide points to the testimony of the Fieldses' expert indicating that, based solely upon his review of the Fieldses' allegations of exposure and not his own personal knowledge, this case appeared to be one involving chrysotile exposure. [***28] However, this testimony does not conclusively demonstrate the absence of a genuine issue of material fact. To the contrary, the Fieldses' expert also testified that given the various sources of asbestos to which Mrs. Fields was exposed, it was "difficult for [him] to really sort out whether or not there was ... mixed exposure or chrysotile only exposure." "[S]uch contradictions go solely to the expert's credibility, and are to be assessed by the jury when weighing the expert's testimony." (Punctuation and footnote omitted.) Thompson v. Ezor, 272 Ga. 849, 853 (2) (536 SE2d 749) (2000).
Thus, in light of the expert testimony that exposure to Union Carbide's product, when combined with other asbestos fibers, could have contributed to Mrs. Fields' mesothelioma, the Fieldses have demonstrated the existence of a genuine issue for trial as to causation. Therefore, the trial court properly denied Union Carbide's motion for summary judgment.
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POLSTON v. BOOMERSHINE PONTIAC-GMC TRUCK, INC. et al., 262 Ga. 616; 423 S.E.2d 659 (1992)
To the extent that the injuries suffered by the plaintiff are indivisible, the defendants are treated as joint tortfeasors. Once the plaintiff's burden has been borne, the burden of proof shifts to the defendant which wishes to limit its liability to demonstrate a rational basis for apportioning the liability for the injuries.
COUCH v. RED ROOF INNS, INC. et al., 291 Ga. 359; 729 S.E.2d 378 (2012)
Sixth and finally, the plaintiff argues that the defendant property owner in this case cannot establish evidence to support any rational basis for apportionment. That, however, is a question of fact not relevant to answering the legal questions set forth in this case. See Polston v. Boomershine Pontiac-GMC Truck, Inc., 262 Ga. 616 (423 SE2d 659) (1992).
GFI MANAGEMENT SERVICES, INC. v. MEDINA. 291 Ga. 741; 733 S.E.2d 329 (2012)
Accordingly, in light of our decision in Couch, the trial court's decision granting [*743] plaintiff's motion in limine on the grounds that OCGA §§ 51-12-33 and 51-12-31 are unconstitutional must be reversed.2
2 Since the trial court did not make a ruling as to whether there is sufficient evidence in this case to support a rational apportionment of damages, we decline to make such ruling as urged by appellee in his briefing on appeal.
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MAXIMIZING RECOVERY BEYOND
WORKERS’ COMPENSATION
Michael J. WarshauerWarshauer Law Group, P.C.
Atlanta, Georgia
PLAINTIFF’S PERSONAL INJURY
Maximizing Recovery Beyond Workers’ Compensation
Michael J. Warshauer
Warshauer Law Group, P.C. Suite 2000, 3350 Riverwood Parkway
Atlanta, GA 30339 404 892 4900
warlawgroup.com
I. Introduction
When a client comes into our office claiming to have been injured at work, is
there anything we can do for him other than help him maximize the value of his
workers’ compensation recovery? To paraphrase a quote from an 1897 article on Santa
Claus, yes, Virginia, we can get more than merely workers’ compensation. When
confronted with a work place injury, especially those involving catastrophic injuries, it
pays to think creatively for our clients. There are many instances when an injured party
has a means of recovery for a work related injury other than just against his employer.
Car wrecks, product liability, medical negligence, and premises liability claims are
major areas to investigate for potential recoveries.
A. Employer’s Cooperation - At What Cost and Why?
Consideration of potential third party actions, especially those involving other
entities on the job site, cannot be completed without an understanding of the dynamics
of the employer’s interest and its relationship to these third parties. Often, employers
may be willing to facilitate our access to important investigation or information that
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may lead to a recovery. They will do this for two primary reasons: 1) they are
genuinely concerned about their employee and want to help; or (2), more commonly,
they see their employee’s potential recovery as an opportunity to seek reimbursement
for their workers’ compensation payments. It is important to try to identify the
employer’s motive, if help is offered.
Under the first scenario, the employer sometimes has a long relationship with the
worker or the employer is a smaller “mom and pop” type operation. Larger companies
sometimes have less concern for their individual employees, are too bureaucratic, or the
caring management is so departmentalized as to eliminate any direct benefit from their
concern for the injured worker.
Care should be taken not to compromise the client’s rights to recover under
workers’ compensation, while working up the workers’ compensation case and trying
to investigate and develop the possible third party claim.
B. Important, Perhaps Obvious, Differences Between Workers’ Comp and
Third Party Claims
-Liability will have to be proved in third party claims.
-Recovery (financial) will take considerably longer in third party claims.
-Cost of pursuing and trying cases is more expensive in third party claims.
-If successful, recovery from third parties will be substantially larger.
II. Client Status Issues
A. Independent Contractor/Client
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If your client is an independent contractor, he is probably not covered by
workers’ compensation, and often will not have any recourse against the entity that
hired him because of the terms of his “employment” contract. Buried in O.C.G.A. § 34-
9-1 is language that outlines such an employee’s status and prevents workers’
compensation coverage. That statute is written to describe who is covered and is
intended to exclude certain classes of workers. We may want our client excluded, or
may want them covered allowing the potential for both workers’ compensation and the
ability to seek a recovery from another entity. The test to determine if a worker is an
independent contractor involves a common law analysis of the employer’s ability to
direct and control time, method, and manner of work. In determining whether the
employer/employee or independent contractor relationship exists, the test is not
whether the employer did in fact control and direct the employee in work; but it is
whether the employer had that right under the employment contract. Moon v. Georgia
Power Co., 127 Ga.App. 524, 194 S.E.2d 348 (1972). Commonly, the relationship will be
defined by and perhaps controlled by a contract – written, or implied by course of
conduct.
B. Fellow Servant/ Borrowed Servant
A company will often claim that an employee who caused injury to another
employee was a borrowed/fellow servant in order to avoid any liability exposure (and
often, at the same time, avoid any workers’ compensation obligations by contractually
allocating that risk to your client’s employer, if it is a subcontractor or vendor). For
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example, a hotel employee was the “borrowed servant” of an independent plumbing
contractor at the time he was injured while helping the contractor lift some pipe, and
thus was barred by Workers’ Compensation Act from suing the contractor in tort for the
injury, where the contractor clearly had the exclusive right to control and direct the
negligent employee’s work on the particular task in question, as well as to dismiss him
from that task for unsatisfactory performance. Jarrard v. Doyle, 164 Ga. App. 339, 297
S.E.2d 301 (1982).
III. Status of Third Party
A. Independent Contractor/Negligent Entity
The concept of independent contractor is not limited to the status of the client.
Instead, it is also very important because while our clients are barred from suing their
employers, there is no such limitation against actions versus independent contractors on
the job site who cause injury. A more in-depth analysis is required when an
independent contractor, working on the same project, injures our client. Work sites that
are particularly dangerous often will outsource some of the supervision of
subcontractors to an “independent contractor”. The independent supervisor usually
has some title like “operations manager” and his employment status is rarely known or
understood by the injured employee. That is to say, the employee will think the
independent contractor is part of the general contractor’s management team. They
often have an office on site, wear the same uniform, and work exclusively for the
employer for years and their “true” status is often not known until late in the game.
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CAUTION: failure to identify the “independent contractor’s” purported independence
may lead to loss of a potential cause of action as the statute of limitations passes (call
your E & O carrier).
Unfortunately, however, the opportunity to discover the true identity is not
known and will not be made known by an uncooperative employer. This is why it is
important to determine the motive of an employer. Sadly, many companies in
dangerous businesses almost by definition do not care about their employees or those of
their subs. What they do care about is: 1) avoiding liability, including OSHA sanctions
and fines, and; 2) keeping their liability and workers’ compensation rates low.
In an effort to avoid liability, the company will contract out supervisory duties
that may include safety training, hiring, employee screening, and entrustment of
dangerous equipment. The independent contract/supervisor will have an unwritten
and probably unspoken agenda with the employer: “Time is money”. The very person
who is supposed to be a watchdog for safety will have an economic incentive to
compromise our clients’ safety.
One effective way to discover the supervisor’s true identity is to file suit well
before the applicable statute of limitations against the employer (notice pleadings of
alternative theory of liability such as premises liability, and negligent supervision).
The company/general contractor/employer will answer claiming among other
defenses, that there is no claim against them because of the exclusive remedy of
workers’ compensation and alternatively that the negligent entrustment, selection,
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supervision etc. involves an unnamed party (or if you allege that the supervisor is an
agent of the company, then they will claim he is an independent contractor). At that
point, if the alternative theory against the company will not survive, proceed against
the independent contractor. Discovery sent with the suit should ask for every fact and
basis for any defenses raised. Fortified with that information, you can move to add an
indispensable party and begin to uncover the dirty secrets of the supervisor’s true
status.
Independent contractors/supervisors will frequently maintain their own liability
coverage, presumably because they know that they are being set up as a fall guy. A
morass of problems may arise when the employment contract with this independent
supervisor attempts to provide for indemnification or hold harmless agreements that
essentially revert the claim back to the employer, who is protected by the exclusive
remedy provision. This is now a contract dispute and perhaps a coverage dispute and a
declaratory judgment action may be necessary to determine coverage and the
application of the employment contract. The declaratory judgment action may be an
opportunity to expose the employer for what we suspect them to be, the independent
supervisor, who may in turn be willing to cooperate with your claim.
B. Issues to Consider
1. Independent Contractor vs. Borrowed/Fellow Servant
Potential defendants will want to distance themselves from the liability claim
and may also try to avoid the workers’ compensation claim. They can avoid workers’
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compensation by requiring a sub contractor to carry the coverage, and avoid the
liability claim by hiring an independent contractor to do their dirty work.
2. Tendered Defenses
When a company hires an independent contractor/supervisor of outsourced
work, it may still provide a defense for that negligent entity. This arrangement is often
controlled by the independent contractor’s contract with the company and gives rise to
some obvious conflicts of interest.
3. Indemnification
Companies often require their subcontractors to indemnify them for any loss
caused “out of conduct” of one of the subcontractor’s employees. Any assumption of
risk or contributory negligence may give rise to this contractual obligation on behalf of
the sub contractor, who in turn, will claim that it is immune from any obligation
because of the exclusive remedy of workers’ compensation. The indemnification
agreement may be against public policy or otherwise unenforceable, but the claimant
should not be prejudiced by a contract to which he was not a party.
4. Assumption of Risk vs. Estoppel
Work conditions that are so hazardous as to be considered inherently dangerous
give rise to a defense that the plaintiff assumed the risk of his job, and therefore should
not recover (i.e. working in man hole vault with unmarked “hot” wires, working from a
ladder on scaffolding without rails). These scenarios are often accompanied by a
mandate from some management/perceived management/independent contractor’s
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instruction that the worker must do his work under those conditions or not work. That
mandate, if proved, may give the worker an opportunity to counter the defense and the
court may determine that the company/independent contractor is prohibited by
estoppel from asserting the defense.
IV. Location Issues
Many job site injuries occur on property belonging to an entity other than the
employer. Our client will be considered an invitee or at least a licensee so long as he
has not exceeded his lawful access to the property, in which case he may become a
trespasser. The status of our client at the time of the incident will determine what rights
he has against the premises owner and what duties the premises owner owed him. In
order to determine what duty is owed, we must first determine the status of our client
at the time of injury.
As the Court of Appeals noted in Bruno’s Food Stores, Inc. v. Taylor, 228 Ga. App.
439, 444, 491 S.E.2d 881 (1997), “[a]cts or omissions of an owner/occupier of the
premises can create a dangerous condition on the premises; such acts or omissions
constitute active negligence and do not become static just because the condition pre-
exists the arrival of the invitee.”
Where the owner/occupier of the premises through malfeasance (commission of
an act wrongful in itself), misfeasance (improper performance of an act), or nonfeasance
(the failure to perform an act) creates a reasonably foreseeable danger to an invitee, then
knowledge is presumed or imputed too the owner/occupier, because it is the
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tortfeasor’s act or omission that created the danger or allowed the danger to continue
unabated or without warning.
Id.
A. Invitee
O.C.G.A. § 51-3-1 states:
Where an owner or occupier of land, by express or implied invitation,
induces or leads others to come upon his premises for any lawful purpose,
he is liable in damages to such persons for injuries caused by his failure to
exercise ordinary care in keeping the premises and approaches safe.
This is a statutory duty and is nondelegable. Hickman v. Allen, 217 Ga. App. 701, 702,
458 S.E.2d 883 (1995); Towles v. Cox, 181 Ga. App. 194, 196, 351 S.E.2d 718 (1986). It
should be noted that this duty means that the premises must be kept safe - not just
reasonably safe. See Bruno’s Food Stores, Inc. v. Taylor, 228 Ga. App. 439, 491 S.E.2d 881
(1997); Towles v. Cox, 181 Ga. App. 194, 351 S.E.2d 718 (1986).
A visitor is an “invitee’ of the owner if his presence on the premises promotes
mutual interests of both owner and visitor. Planned Community Services, Inc. v. Spielman,
187 Ga. App. 703, 371 S.E.2d 193, certiorari denied (1988). Under Georgia law, a “person is
an invitee where, for purposes connected with the business conducted on the premises,
he enters any place of business . . . .” E.g., Coffer v. Bradshaw, 46 Ga. App. 143, 148, 167
S.E. 119 (1932). Georgia law is replete with cases holding that persons who come onto a
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landowner’s premises to assist in the furtherance of its business are invitees. E.g., Hall v
Capps, 52 Ga. App. 150, 182 S.E.2d 625 (1935); Davis v. Garden Services, Inc., 155 Ga. App.
34, 270 S.E.2d 228 (1980).
Often the relationship necessary to impart invitee status is described as one in
which the owner of the premises and the invitee have a mutuality of interest. All that is
necessary is that each party has a lawful interest in the subject of the invitation. E.g.,
Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 30 S.E.2d 426 (1944).
Sheffield Co. v. Phillips, 69 Ga. App. 41, 24 S.E.2d 834 (1943), concerned a meter
reader for Georgia Power Company, who was an invitee of the defendant commercial
property owner. Georgia Power provided electricity to the defendant Sheffield
Company, a retail and wholesale business. Their meter was located inside the store
near the rear door. The company maintained a freight elevator near the entrance and
meter; however, there were no signs indicating the existence of the elevator. In order to
read the meter the plaintiff stood in an area that was, unbeknownst to him, the first
floor resting place for the elevator. While attempting to read the meter the elevator
descended, striking and injuring the plaintiff. The defendant denied liability, claiming
that the plaintiff was a mere licensee. The court disagreed, holding that:
The plaintiff was an invitee on the premises of the defendant at the time he was injured. His employer, the power company, furnished the electric current to the defendant under a contract. The plaintiff was on the premises of the defendant at the time he was injured in order to read the meter on the premises. The reading of the meter was in furtherance of the contract between the defendant and the power company for the latter to furnish current to the defendant, and it was to the interest of the defendant, as well as to that of the power company, that the meter be read
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so as to determine the amount of current used by the defendant. There is no merit in the contention that the plaintiff was a mere licensee on the premises.
69 Ga. App. at 45, 24 S.E.2d at 838.
The court went on to note that the defendant could be held liable for its failure to
warn the plaintiff, its invitee, of dangers on the premises about which it was aware.
“This duty to keep the premises safe for invitees extends to all portions thereof which
the invitee may use in the course of the business for which the invitation is extended.”
Id. at 45-46.
In Johnson v. Kimberly Clark, the court held that even though Kimberly Clark had
contracted with the plaintiff’s employer to do the work, it still had a duty to keep the
premises safe; and that duty was non-delegable. “‘[Kimberly Clark] would still owe a
duty to [plaintiff] to exercise ordinary care to keep the premises and approaches safe
unless [Kimberly Clark] had delivered full and complete possession of the premises to
[Goodman Decorating] either on a temporary or permanent basis. [Cites].’” 233 Ga.
App. at 510-511, 504 S.E.2d at 539. Because there was no evidence that Goodman
Decorating had full and complete control of the premises where plaintiff was required
to paint, a fact issue existed as to the control of the premises. 233 Ga. App. at 511, 504
S.E.2d at 539.
B. Licensee
O.C.G.A. § 51-3-2 a licensee as a person who:
1) Is neither a customer, a servant, nor a trespasser;
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2) Does not stand in any contractual relation with the owner of the premises; and
3) Is permitted, expressly or impliedly, to go on the premises merely for his own
interests, convenience, or gratification.
An example of a licensee is a person shot outside a nightclub he had patronized earlier,
for whose injury the nightclub owner was not liable for absent evidence the owner
willfully or wantonly caused injury, where, prior to the shooting, the nightclub had
closed for the night and the patron had departed the club and sat for some time in his
car. Armstrong v. Sundance Entertainment Inc., 179 Ga.App. 635, 347 S.E.2d 292 (1986).
C. Trespasser
A trespasser is not an invitee. Instead, a trespasser is a person who has no
permission, or has exceeded the permission he might have had as an invitee or licensee.
From a legal standpoint, the duty owed licensees is not much different from that owed
to mere trespassers.
Unfortunately, the case law in Georgia has essentially eroded the distinction
between a licensee and a trespasser. In order to recover for a licensee, we need to prove
intent to cause harm, just like a trespasser (spring gun, man trap). The Georgia Court of
Appeals might eventually correct the problem, but the lesson to be learned is that it is
important to establish that your client was an invitee for purposes of this analysis.
Consider serving requests to admit or filing a motion for partial summary judgment
early on in this claim, to clear up the status of your client and the duty the defendant
owed.
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For example, a boy, age ten, who had been told by the manager of an eating
establishment, in the presence of two employees, to not to go behind the counter, but
who, at the request of the employees, went behind the counter to get ice from a machine
to fill an ice bin, was a trespasser or volunteer and the owner was not liable for injuries
sustained by the boy in using machine. Huddle House, Inc. v. Burke, 133 Ga. App. 643,
211 S.E.2d 903 (1974).
IV. Medical Malpractice
Workers’ compensation clients are getting medical care. Sometimes, this care is
not provided by the best or most caring physicians. When bad medical care leads to
injuries that would not have been sustained but for the bad care, a medical malpractice
claim should be investigated. It is important to keep in mind that delay in treatment
that does not exacerbate the injury, but only delays the cure, while perhaps bad
medicine does not arise to the level necessary to bring a malpractice claims. A simple
question to ask is “how is the client different today than he would have been had he
gotten better care?” If the answer is “the same”, this is not a viable claim.
A cause of action for medical malpractice, or any form of professional negligence,
is a claim which brings into question the professional care or skill employed by a given
professional. The action is based upon fault; therefore, strict liability principles do not
apply. Nor is res ipsa loquitur applicable in malpractice actions in Georgia. As in any
negligence action, the plaintiff must establish duty, breach, proximate cause and
damages. What differentiates a claim for professional malpractice from any other tort
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primarily concerns the procedural hurdles necessary to bring a claim and the need for
specific expert testimony in order to successfully prosecute or defend the claim.
Georgia law requires that any person who performs skilled services, such as
medical services, exercise that degree of care, skill and ability which is ordinarily
exercised under similar conditions and like circumstances by others employed in the
same or similar professions. The standard of care is not what one individual’s doctor
thought was advisable and what he or she would have done under the circumstances;
the standard is what a “reasonable” medical professional would do under similar
circumstances.
Although rebuttable, in Georgia there is a presumption that professional services
are provided with the requisite degree of care, skill and diligence generally required by
the profession. Thus, the plaintiff is usually required to present expert testimony to
overcome the presumption and once the plaintiff produces sufficient evidence of
negligence, the burden then shifts to the defendant to respond with similar expert
testimony.
A. Elements of a Cause of Action
As noted above, the elements of a cause of action for medical malpractice are
those found in any negligence action. The duty exists through the doctor-patient
relationship or other situation where the defendant professional, including a
corporation or group providing medical care, owes a duty to perform skilled services
with that degree of care and skill ordinarily exercised by persons in the profession.
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The plaintiff must first establish, through expert testimony, the standards of practice
and the degree of skill and care ordinarily employed by others in the same profession.
The standard of care must be proved by an expert in professional negligence cases
because the jury cannot rationally apply negligence principles to professional conduct
without evidence of what the competent professional would have done under similar
circumstances. However, in rare cases involving “clear and palpable” evidence of
negligence, no expert testimony is required. Additionally, while expert testimony is
necessary in cases in which the medical professional’s care and skill is criticized, expert
testimony is not necessary even against a professional if the cause of action is based on
“ordinary negligence.” For example, in Clark v. Prison Health Services, Inc., the court
held that an action which alleged that a prison nurse negligently failed to deliver a
mental health evaluation for the deceased prisoner to a booking officer stated a claim
for ordinary negligence, not medical malpractice. Unfortunately, it is not always clear
what constitutes ordinary negligence in this context of a professional’s conduct. The
best approach is always to present expert testimony when a medical professional,
individual or organization, is the defendant.
The plaintiff is then required to produce expert testimony establishing that the
defendant’s conduct deviated from the accepted standard of care. The plaintiff must
also establish that the defendant’s negligence was the proximate cause of the plaintiff’s
injuries. Causation in a malpractice action requires more certainty than providing
evidence that the plaintiff “might have” or “could have” obtained a more favorable
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result had the defendant not breached the standard of care. While some courts have
held that expert testimony is not required to establish causation, the Court of Appeals
recently confirmed that establishing causation similarly requires proof. Finally, the
plaintiff must prove damages.
B. Time Limitations
An action for medical malpractice in Georgia must be brought within two years
after the date on which the negligent act or omission occurred. While there are some
exceptions that can extend the limitation period, the statute also provides for a five-
year statute of ultimate repose. The statute of repose must of course be considered
when deciding whether to file suit; however, it also is important to recognize that the
repose period will similarly serve to bar a suit that has been dismissed and refiled
pursuant to O.C.G.A. § 9-2-61 more than five years after the date of the negligent
treatment.
V. Product Liability Claims
Workers’ compensation clients are often injured by chemicals and machines in
the work place. These are often serious injuries involving amputation or fingers, hands
and arms. Whenever these kinds of injuries occur, it is important to consider and
investigate the possibility of there being a product liability claim.
Product liability law imposes on manufacturers the risks and costs of injury to
humans caused by defective products. A careful attorney will consider the potential for
a product liability action in just about every case where a person is injured while using
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a machine, a consumer or industrial product, or even consuming a food or beverage.
This is because “[p]roducts liability is concerned with injuries caused by products that
are defectively manufactured, processed, or distributed.”1 Too often, a potential
products case is thought of too late, after the product has been destroyed, lost or put
back into use, or the applicable time limit has expired.
A. Causes of Action for Product Liability
There are a variety of legal avenues available to a plaintiff who is injured by a
defective product. In bodily injury cases relevant to workers compensation clients, the
plaintiff can rely on negligence, strict liability, and warranty theories. In a property
damage case, the plaintiff can rely only on negligence and warranty theories. It must be
one or the other – a mere accident without damages to body or property does not give
rise to a products liability action.2 “In any products liability case, the plaintiff has the
burden of proving: (1) that the product was defective, (2) his injury, (3) the causal
connection between the defect and the injury, and (4) that the defendant was
responsible for the defect.”3
C. Strict Liability: O.C.G.A. §51-1-11 is the basis for most claims
While common law developments are an important source of product liability
law, the most important source for product liability law in Georgia is the product
1 Products Liability, Noel & Phillips (1991) p. 1. 2 Busbee v. Chrysler Corp., 240 Ga. App. 664; 524 S.E.2d 539 (1999) 3 Products Liability, Second Edition, Madden, §12.1, p. 487
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liability statute. O.C.G.A. §51-1-11(b)(1) establishes Georgia’s rule regarding a
manufacturer’s strict liability for an injury caused by one of its products:
The manufacturer of any personal property sold as new property
directly or through a dealer or any other person shall be liable in
tort, irrespective of privity, to any natural person who may use,
consume, or reasonably be affected by the property and who
suffers injury to his person or property because the property when
sold by the manufacturer was not merchantable and reasonably
suited to the use intended, and its condition when sold is the
proximate cause of the injury sustained. (emphasis added)4
Note that this statute is not identical to 402A of the Restatement (Second) of Torts. In
Georgia, unlike states that have adopted the Restatement as the basis for strict liability,
a product does not have to be unreasonably dangerous before imposition of strict
liability.5 Instead, the focus is on consumer expectations of safety and danger. This
appears to be true even after the Banks v. ICI Americas, Inc.6 opinion which added a risk
utility analysis as one of the measures of product defectiveness7. While §402A of the
Restatement (Second) of Torts is not identical to Georgia law, comment “i” is instructive
4 This imposition of strict liability is important to Georgia as a matter of public policy. An illustration of this can be found in the recent decision of Alexander v. General Motors Corp., 267 G. 339 (1996) in which it was held that strict liability would be imposed as a matter of public policy even though the injury occurred in a in a state which did not recognize strict liability. 5 Firestone Tire Co. v. King, 145 Ga. App. 840, 244 S.E.2d 905 (1978). 6 Banks v. ICI Americas, Inc., 266 Ga. 607 (1996) 7 Restatement (Third) of Torts: Products Liability §2, Reporter’s Notes to comment c, Tentative Drft No. 2, 1995 notes this which is consistent with the history of Georgia products liability law.
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and provides: “The article sold must be dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics.”
Additionally, though not yet adopted in Georgia, it must be noted that Georgia
law may be modified by the Restatement (Third) of Torts8 which seems to require that
an alternative design be shown by the plaintiff in order to recover in a defective design
case. The likelihood of this new interpretation of products liability law being eventually
adopted in Georgia is bolstered by the Georgia Supreme Court’s decision in Banks v. ICI
Americas, Inc.9 that makes risk utility analysis part of the determination of whether a
product is defective. This is because part of presenting a case under a risk benefit
analysis is accomplished by looking at alternative designs in order to show the lack of
benefit or utility of a particular design when weighed against its risks. Again, although
this is not yet the law by virtue or either statute or court opinion, in practice the courts
and many lawyers act as if it already is.
(i) Elements of a Strict Liability Claim
Simplified, the basic requirements for a strict liability cause of action are:
a. The product must be sold as new, tangible property; (A used
product can be the subject of a strict liability claim, as this element relates to the liability
of the initial manufacturer having sold the product as new.)
8 Restatement (Third) of Torts: Products Liability §2 9 264 Ga. 732, 45 S.E.2d 671, 672 (1994)
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b. The product must be defective at the time it leaves the control of
the manufacturer; (The defect can arise later provided the conditions that caused the
defect existed at the time of manufacture.)
c. The product must be the proximate cause of an injury to a human.10
D. Negligence Can Also Be the Basis of a Cause of Action
Although the strict liability statute is the source for most product liability actions
in Georgia, basic negligence law must also be considered. The concepts of strict liability
have not completely eliminated negligence as a cause of action. Negligence principles
are often applicable in determining whether a product is defective - that is, not
merchantable and reasonably suited to the use intended, as that phrase is used in
O.C.G.A. §51-1-11(b)(1). In fact, “[p]roducts liability law in Georgia has evolved
primarily as a cause of action in negligence.”11 This is not to say that the two theories
are identical. The important decision by the Supreme Court of Georgia in Banks v. ICI
Americas, Inc.12 recognizes that strict liability and negligence claims remain distinct and
continue to have different, although sometimes only minimal, elements.
Negligence concepts such as reasonable care and diligence are especially relevant
in design defect cases. However, in a manufacturing defect case in which the product
simply did not work as it was supposed to because of some assembly or material
problem, the concept of strict liability is the primary theory of recovery. In
10 Ellis v. Rich’s, Inc., 233 Ga. 573, 212 S.E.2d 373 (1975); Ford Motor Co. v. Cantor, 23 Ga. 657, 238 S.E.2d 361 (1971). 11 Georgia Products Liability, 2nd Ed. Maleski, p. 3. 12 264 Ga. 732, 45 S.E.2d 671, 672 (1994).
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manufacturing defect cases, manufacturers are not allowed to escape liability by
showing that their quality control procedures were reasonable and appropriate – in
such cases negligence principles are irrelevant.
D. Checklist for Product Liability Case Elements
The plaintiff must prove the following:
a. That the product was manufactured by the defendant; (There are claims
against refurbishers and sellers, and even renters, of used products but the
basis for liability is negligence.13)
b. That the product was new property when first sold (or leased) for
human
use;
c. That the product was defective in its:
i. manufacture, and/or
ii. design, and/or
iii. warnings/marketing/packaging;
d. That the defect was the proximate cause of the injury to a human;
e. That in most cases the injury occurred, and suit was filed, within ten
years of the first retail sale of the product14;
13 Dozier Crane & Machinery, Inc. v. Judge, et. al. 284 Ga. App. 496, 644 SEd 333 (2007) 14 O.C.G.A. §51-1-11(c) specifically excludes products causing slowly manifesting diseases such as asbestos and products which cause birth defects from the ten year statute of repose. Additionally, if the defendant’s conduct was willful and wanton, it loses the protection of the statute of repose.
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f. That the product was not substantially altered or modified or abused in
an unforeseeable manner;15
g. If a warranty theory is relied upon, that there is privity; and
h. If a warranty theory is relied upon, that notice has been given to the
defendant.
B. ADDITIONAL CHECKLIST FOR PRACTICAL ELEMENTS
i. Appropriate testimony, usually by experts, can be obtained to prove the
case; (Keep in mind that the Daubert rule can make this challenging.)
j. The plaintiff is sufficiently injured to justify the expense;
k. Counsel has sufficient financial resources to prosecute the case.
VI. Ten Ways To Botch a Third-Party Claim
As with most things in the law, there are many ways to mess up a potential
third-party claim. Some are obvious, while are others are not as apparent to attorneys
who do not regularly handle third-party claims from inception through verdict. In no
particular order, here are just a few ways that you could potentially spoil your client’s
potential at obtaining a recovery from a third-party:
1. Missing the Statute of Limitations
This is perhaps the most obvious way that a potential third-party claim can be
mishandled. The statute of limitations for personal injury claims is two years, and the
15 T. Alexander, “Products Liability in Georgia, An Updated Overview,” p. 7. Insurance Law Institute, ICLE in Georgia 1985.
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statute accrues on the date of injury. O.C.G.A. § 9-3-33 (note that the statute for loss of
consortium claims is four years); Everhart v. Rich’s, Inc., 229 Ga. 798 (1972). There is a
wealth of case law discussing calculation of the limitations period in a variety of
circumstances, such as, for example, when certain situations exist to toll the statute. The
important thing to note, however, is that, as a general rule, the statute expires two years
from the date of injury.
Also, if the claim is not brought within one year from the date of injury, the
employer, or its insurer, has the right to assert the employee’s cause of action. O.C.G.A.
§ 34-9-11.1(c). That rarely happens, but if it does, the employee then has the right to
intervene in the action.
2. Missing the Statute of Repose
The statute of repose applicable to product liability claims is more often
overlooked. Georgia law provides, with limited exception, that no personal injury
claim for the defective design of a product, either in negligence or strict liability, shall be
commenced after ten years from date that the product was first sold for consumer use.
See O.C.G.A. § 51-1-11(b)(2). The statute or repose only applies to design claims and
does not bar a failure to warn claim. O.C.G.A. § 51-1-11(c); Chrysler Corp. v. Batten, 264
Ga. 723 (1994). Any time your client sustained product caused harm and there is a
possibility of a product liability claim, it is important to quickly learn when the product
was first sold for consumer use and then calculate the expiration of the statute or
repose. Failure to take these steps could lead to a much more watered down claim
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arising out of a failure to warn, which is almost always a much flimsier claim that a
design defect claim.
3. Allowing Client to Give Statement to Insurer for Third-Party
There is simply no benefit to having your client give a statement to the insurer
for a third-party. The insurance adjuster will act like she just wants to know the facts of
the case or how to value your client’s injuries, but that is almost never true. There true
motivation is to get your client locked into a story early on in the case. Even if that
statement is not on its face beneficial to the third-party, it will still provide a way for
your client’s story to be attacked in cross-examination if it deviates in the slightest detail
from the previous statement. Simply put, the third-party’s insurer does not have you or
your client’s best interests at heart in seeking a statement, so do not open your client up
to a potential attack later down the road. If the insurer questions your motivations for
not allowing your client to give a statement, politely ask the adjuster if the insurer is
going to let you take a statement of its insured.
4. Blaming the Employer for the Injuries
When individuals are injured at work, it is often the case that the employer failed
to do all that it should have done to provide your client with a safe place to work. For
example, the employer could have failed to properly train the plaintiff or his co-
workers, it could have failed to provide adequate guarding or maintenance for a
particular piece of equipment that caused injury. Consequently, the employer is
frequently an easy target and the knee jerk reaction is to point the finger at it. DO NOT
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DO IT. Blaming the employer for your client’s injuries serves no beneficial purpose and
will only diminish, or even defeat, your client’s potential recovery from a third-party.
This is particularly true now that we have entered the age of non-party apportionment.
See O.C.G.A. § 51-12-33. There are few things more damaging to a potential liability
case than having a statement from the injured client, or his spouse, assailing the
employer for failing to take the necessary precautions to provide the worker with a safe
place to work.
5. Spoliation of Evidence
It is axiomatic that the plaintiff will need evidence to prove his third-party claim.
This evidence could come in many forms, from statements or photographs, to the piece
of equipment that caused the harm. Failing to have third-parties preserve evidence or
allowing it to be spoliated can have a detrimental impact on the ability to prove the
case. “Spoliation refers to the destruction or failure to preserve evidence that is
necessary to contemplated or pending litigation.” Bridgestone/Firestone N. Am. Tire, LLC
v. Campbell, 258 Ga. App. 767, 768 (2002). Not only can it possibly prevent you from
having the necessary evidence to prove your case, but, if the evidence was in your
possession, custody, or control, it could give rise to a negative inference instruction, or,
worse yet, the dismissal of your case. Id. As soon as possible, send a letter of
representation to all potential defendants in the third-party case. Include in the letter an
itemized list of everything that may be relevant to the claim and request that it be
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preserved. Be specific and reasonable. Do not use a “kitchen sink” approach that is
impossible to comply with.
6. Lacking Sufficient Experience and Resources to Prosecute the
Action
It is easy for attorneys to get in over their heads in a particular case. We have all
done it. In certain types of cases, such as products liability, it is much easier. Product
liability cases are very expensive and time intensive, requiring hours of written
discovery and depositions. To work one up properly, expect to spend, at a minimum,
$50,000 just preparing the case for trial. These cases can become even more complex
when an attorney finds himself or herself in federal court after the foreign manufacturer
removes the case. Federal court presents numerous potential pitfalls for an attorney
who lacks the proper experience. At the earliest possible time, it is important to
associate an attorney who has the requisite resources and experience to assist in
prosecuting the claims.
7. Filing in an Unfavorable Venue
We all know that certain venues are more hostile to plaintiffs than other venues
are. Filing a case in an unfavorable venue can have a dramatic impact on the value of
your case. In many cases there are multiple venue options available to the plaintiff,
some of which that are obvious, while others are more obscure. See Gay v. Piggly Wiggly
Southern, Inc., 183 Ga. App. 175 (1987) (recognizing that venue as to one tortfeasor is
proper as to all joint tortfeasors). It is important to identify all potential claims and all
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potential defendants early in the case. Once all the potential claims and parties are
identified, you should thoroughly review all venue options under Georgia law and then
determine which one is more favorable.
8. Doctor Shopping
Doctor shopping can provide a fertile ground for cross-examination of your
client regarding the cause and extent of his injuries and damages. Sure, we have all
encountered situations where a particular doctor is hostile and there may be a few
limited situations where you may want to consider finding an alternative medical
provider. However, it does not look good when your client has seen five different
orthopedic doctors in a two-month period for the pain in his back.
9. Settling the Workers’ Compensation Case Without Getting Waiver of
Subrogation Lien
The workers’ compensation subrogation statute in Georgia is more plaintiff-
friendly than are the statutes of some other states. Nevertheless, workers’
compensation carriers seeking reimbursement sometimes aggressively pursue the
enforcement of their lien. This can not only be headache, but if the lien is fully or
partially paid, either voluntarily or by court order, it can deprive your client of funds
that they would have received from the third-party. That is why the claimant’s attorney
should always attempt to have the carrier waive its subrogation lien as part of the
workers’ compensation settlement. Resolving the issue at that stage provides peace of
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mind and the guarantee that the insurer will not be able to dig into your client’s pockets
when the liability case is resolved.
10. Not Evaluating Whether a Potential Third-Party Claim Exists
Last but not least, the most fatal mistake you can make is never bothering to
evaluate the facts, and the law, to determine whether a potential third-party claim
exists. In this regard, you should be creative. Look at all the actors who played a role in
the events leading up to your client’s injuries, and then research the law to see if any of
their acts or missions are actionable under Georgia law. If you run into a dead-end, just
pick up the phone and call an attorney who specializes in third-party liability claims.
There could be a whole body of case law regarding a particular cause of action that you
were simply unaware of.
VI. CONCLUSION
In conclusion, it can literally pay to think creatively for your clients. There are
many potential sources of recovery available to an individual who is injured in the
course and scope of his employment. All you need is the time and resources to
thoroughly investigate the claims. In addition to being able to identify potential third-
party claims, it is important that you have the resources and experience to handle the
claim, or, if you do not, to associate counsel who does.
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APPENDIX
INSTITUTE OF CONTINUING LEGAL EDUCATION IN GEORGIA
BOARD OF TRUSTEES The State Bar of Georgia and the Law Schools of The University of Georgia, Emory University and Mercer University established the Institute of Continuing Legal Education in Georgia in August 1965. In 1984, Georgia State University College of Law was added to the consortium, and in 2005, John Marshall Law School was added. The purpose of the Institute is to provide an outstanding continuing legal education program so that members of the legal profession are afforded a means of enhancing their skills and keeping abreast of developments of the law. The Institute is governed by a Board of Trustees composed of twenty-eight members consisting of the Immediate Past President, the President, the President-elect, the Secretary, and the Treasurer, all of the State Bar of Georgia; the President, President-elect and the Immediate Past President of the Young Lawyers Division; nine members to be appointed by the President of the State Bar of Georgia, each for a term of three years (the President has three appointments each year); two representatives of each of the participating law schools; and the Immediate Past Chairperson of the Institute. The Immediate Past President of the State Bar of Georgia serves as Chairperson of the Board of Trustees of the Institute. 2011-2012 Term Expires S. Lester Tate, Cartersville 2012 Chairperson, ICLE Immediate Past-President, State Bar of Georgia J. Ralph Beaird, Athens University of Georgia School of Law Kimberly S. Boehm, Duluth 2014 At-Large Trustee Bryan M. Cavan, Atlanta 2012 Immediate Past-Chairperson, ICLE Thomas C. Chambers, III, Homerville 2014 At-Large Trustee Robin Frazer Clark, Atlanta 2012 President-Elect, State Bar of Georgia A. James Elliott, Atlanta Emory University School of Law Denny C. Galis, Athens 2013 At-Large Trustee Michael G. Geoffroy, Covington 2012 Immediate Past-President, YLD, State Bar of Georgia
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Karlisle Y. Grier, Atlanta 2013 At-Large Trustee Stephanie J. Kirijan, Atlanta 2012 President, YLD, State Bar of Georgia Laurel P. Landon, Augusta 2012 At-Large Trustee Ray Lanier, Atlanta Georgia State University College of Law Richardson Lynn, Atlanta Dean, John Marshall Law School Michael Mears, Atlanta John Marshall Law School Jonathan B. Pannell, Savannah 2012 President-Elect, YLD, State Bar of Georgia Rudolph N. Patterson, Macon 2014 At-Large Trustee Patrise M. Perkins-Hooker, Atlanta 2012 Secretary, State Bar of Georgia Charles L. Ruffin, Macon 2012 Treasurer, State Bar of Georgia Kenneth L. Shigley, Atlanta 2012 President, State Bar of Georgia David Shipley, Athens University of Georgia School of Law Gary Simson, Macon Dean, Mercer University School of Law Roy M. Sobelson, Atlanta Georgia State University College of Law Hon. Mary E. Staley, Marietta 2012 At-Large Trustee Nancy Terrill, Macon Mercer University School of Law John W. Timmons, Jr., Athens 2013 At-Large Trustee Derek J. White, Savannah 2012 At-Large Trustee
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ICLE Staff Lawrence F. Jones Executive Director Stephen J. Harper Director of Programs Daniel U. White Director of Projects
Douglas G. Ashworth Associate Director
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GEORGIA MANDATORY CLE FACT SHEET
• Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instructionannually, with one of the CLE hours being in the area of legal ethics and one of the CLEhours being in the area of professionalism. Furthermore, any attorney who appears as soleor lead counsel in the Superior or State Courts of Georgia in any contested civil case or inthe trial of a criminal case in 1990 or in any subsequent calendar year, must complete forsuch year a minimum of three hours of continuing legal education activity in the area of trialpractice. These trial practice hours are included in, and not in addition to, the 12 hourrequirement. ICLE is an “accredited” provider of “approved” CLE instruction.
• Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into thenext succeeding CY. Excess ethics and professionalism credits may be carried over for twoyears. Excess trial practice hours may be carried over for one year.
• A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION whichindicates the program name, date, amount paid, CLE hours (including ethics, profession-alism and trial practice, if any) and should be retained for your personal CLE and taxrecords. DO NOT SEND THIS CARD TO THE COMMISSION!
• ICLE will electronically transmit computerized CLE attendance records directly into theOfficial State Bar Membership computer records for recording on the attendee’s Bar record.Attendees at ICLE programs need do nothing more as their attendance will be recordedin their Bar record.
• The Commission on Continuing Lawyer Competency staff will mail a prescribed affidavitform to each active attorney at the end of the year. The form will show the CLE coursesattended and the number of credit hours that are entered in the Bar records. Each attorneywill swear or affirm that the CLE credits claimed on the affidavit were ACTUALLYATTENDED. Attorneys who are late attending or have to leave a seminar for a periodof time will have to strike the CLE hours shown on the affidavit and enter the hoursactually attended and claimed; or inform the ICLE staff at the seminar to reduce the hoursin the ICLE records before transmitting the credit hours in the ICLE record!
• If the affidavit is correct, the member need only sign the form confirming actual attendanceand return it to the Commission.
• If the affidavit is incorrect, the member should enter the corrections, sign the form, andreturn it to the Commission.
• Do not mail anything to the Commission other than the affidavit. No receipts or otherevidence of attendance are required to support the affidavit unless requested by theCommission.
• Should you need CLE credit in a state other than Georgia, please inquire as to the procedureat the registration desk. ICLE does not guarantee credit in any state other than Georgia.
• Any questions concerning attendance credit at ICLE seminars should be directed to LindaHoward Toll Free: 1-800-422-0893 x306; Athens Area: 706-369-5664 x306; Atlanta Area:770-466-0886 x306
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TO: ICLE Seminar Attendee
Thank you for attending this seminar. We hope that these program materials will providea great initial reference and resource for you in the particular subject matter area. Thereis a chance, however, that you might find an error(s) in these materials, like a wrong casecitation or a typographical mistake that results in an obvious misstatement of black-letter law, such as an incorrect length for the applicable statute of limitations.
In an effort to make them as correct as possible, should you discover a significantsubstantive error(s), please note it (them) on the Errata Sheet below. Then, please detachthe sheet and mail it to ICLE, P.O. Box 1885, Athens, GA 30603-1885 or fax it to (706)369-5899. We will collect all the errata sheets and, after a reasonable time mail acorrection to all seminar attendees and those attorneys who have ordered the book.Should you have a different legal interpretation or opinion from the author's, theappropriate way to address this is by giving him or her a call, which by the very natureof our seminars is always welcome.
Thank you for your help. It is truly appreciated.
ICLE ERRATA SHEET
Seminar Title: _______________________________________ Seminar Date: ___________
Page(s) Containing Error(s): ____
Text of Error(s): ___________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________
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Suggested Correction(s): ___________________________________________________________
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Name _____________________________________________________ Date _______________
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