Atlanta Injury Law Blog

As an attorney representing citizens in cases of catastrophic injury, I depend upon courts being fair, evenhanded and impartial.  Georgia judges are relatively nonpolitical and fair to both sides. An analysis of the Mississippi Supreme Court shows how bad it can get when courts become politicized. 

According to an article by Alex Alston of the Jackson Clarion-Ledger, over the past four and one-half years the Mississippi Supreme Court affirmed 100% of defense verdicts in favor of corporations, hospitals, and insurance companies, but overturned 88% of jury verdicts that had been won in trial courts by negligence or fraud.

The U.S. Chamber of Commerce and insurance companies should be ecstatic over this state of affairs. Think of the money it saves the insurance companies not to pay a claim, knowing they are safe with the state Supreme Court.

But the U.S. Chamber of Commerce, a lobbying arm of Big Business which pours millions into judicial campaigns, is still not satisfied. In a recent 37-page report, entitled Lawsuit Climate 2008, the Chamber ranks Mississippi as the 48th worst legal climate in the nation.

Therefore, one can expect the Chamber and its powerful allies to pour millions more into the judicial campaigns of our Supreme Court justices coming up for election in November to close any chance of victory for a poor maimed victim who has successfully worked his way through the judicial system to the Supreme Court. It is only then that these powerful entities will have a complete victory over anyone bold enough to think he has a claim for negligence or fraud.

How can it be that during the last 4 1/2 years powerful corporations, hospitals, and insurance companies have prevailed in the state Supreme Court in nearly every case? Can an injured plaintiff ever be right?

Why is it that in Mississippi and some other states,  appellate courts have become so heavily politicized, and now hostile to injured citizens, while Georgia has avoided that fate?  One explanation is that trial lawyers in Georgia years ago resisted the temptation to politicize the courts. The judges for the most part remained even-handed, not overly aligned with either side in tort litigation.  Then, when those who have funded political assaults on state Supreme Court justices around the country tried to pick off a couple of our Georgia jurists, those very well-funded efforts failed decisively.  This year, while there are numerous competitive candidates for an open Court of Appeals seat, there are no challengers to our moderately conservative Supreme Court justices who are up for re-election.

To preserve an independent, impartial judiciary, it is essential that both sides of the "tort wars" avoid excessively politicizing the courts, and maintain open communication between the trial bar and the business community. We must preserve the American ideal that no faction should control the courts in order to assure that everyone has access to a fair hearing.

Over the past year I have had the pleasure of serving, along with some folks who are clearly smarter than me, on the advisory board of Georgia Court Watch, which is a project of Georgia Watch, a nonprofit and nonpartisan group committed to consumer rights in Georgia.

We recently issued an annual report on Georgia appellate courts. The reports shows that, contrary to the politically motivated statements of some, the Georgia Appellate judges are not big liberal  activists. I have become acquainted with most of the judges through Bar work, and can assure one and all that they are generally a conservative, well-grounded bunch of folks.

“Many of the decisions reached by the state Supreme Court and Court of Appeals significantly impact the rights that consumers have under law,” said Georgia Watch Executive Director Allison Wall. “Georgia Watch launched this project to provide ongoing, thoughtful, fact-based analysis.”

The “2007 Annual Report” identifies and profiles the most noteworthy consumer-related decisions released by the appellate courts throughout the year, and identifies emerging trends. It focused on decisions on payday loan, insurance coverage, medical malpractice, and other consumer issues.

Too many attorneys  think that a tractor trailer collision is just a bigger car wreck.  They know not that they know not , and therefore do not spot the issues or take the steps required  to preserve and develop evidence or reach all the sources of insurance coverage. We are sometimes called upon to clean up  what others mess up.

So how can one identify an attorney qualified to handle  a catastrophic  trucking accident case? My good buddy  <a href="http://www.truckinjurylawyerblog.com/promo/about/"> Morgan Adams, Lt. Col., USMC (Ret.) </a> in Chattanooga recently wrote on this topic in his <a href="http://www.truckinjurylawyerblog.com/2008/03/articles/legal-issues/finding-the-best-lawyer-to-handle-a-truck-bus-or-commercial-vehicle-case/">blog</a>.

1.    A trucking  trial lawyer should have peer review ratings and specialty organization memberships that indicate experience, competence, and a  strong focus on trucking trial practice. Generally, the attorney should be member of his or her state trial lawyers organization, the American Association for Justice (AAJ), AAJ’s Interstate Trucking Litigation Group, and the Association of Interstate Trucking Lawyers of America. It is good to know if a lawyer  has chaired and spoken at several continuing legal education seminars in the area of trucking litigation, is  are Certified Civil Trial Advocates of the National Board of Trial Advocacy, and has participated significantly in local or state bar associations.

2.    A trucking accident lawyer should be able to fund complex, expensive litigation. The cost of accident reconstruction experts,  vocational experts, economists, video depositions of  defense witnesses and treating physicians, high quality  medical illustrations, and a lot of air travel around the country for depositions can be  pretty  expensive.  While the lawyer’s office need not be a veritable Taj Mahalr, there should be some indications of f success and competence. The key is whether the lawyer has access to funds, often through a large line of credit litigation specifically for  funding client litigation expenses , to be able to properly prepare a case for trial.

3.    Any lawyer you entrust with handling a catastrophic injury case should have the experience of litigating and trying truck accident cases.

Last Monday at Bonita Springs, Florida, I spoke at an international conference of medical researchers on neurofibromatosis, the condition that made my daughter deaf.  Other than a handful of patient family representatives who were invited to provide a human perspective, the participants were research scientists and medical specialists from top unitiversties and research centers around the world.  I could understand little of what most of them said, but I hope they could understand me.

I pointed out that the time from Pearl Harbor to VJ Day was 3 years, 8 months and 6 days. If World War II could be fought and won in that time period, what are the obstacles to coming up with some workable tumor growth suppression agent in that time period? What are the obstacles to delivering a universal genetic disease screening tool, to assure early diagnosis and appropriate referral, within that time period? How can we overcome those obstacles? Remember that the perfect is often the enemy of the good, and this generation of kids with NF need reasonably good solutions now, not just the hope of perfect solutions when it's too late to help them.

The same point about time and urgency can apply in many areas of life and work.  Think about it. If WWII could be won in 3 years, 8 months and 6 days, what is our excuse of letting so many endeavors drag out as long as they do?

Last Saturday, I took office as secretary of the State Bar of Georgia, having been elected by a comfortable margin in a statewide Bar election. Other than taking roll and asking approval of minutes at meetings of the Board of Governors, the duties of the secretary are loosely defined.  For the next year I will assist the other officers as requested, work more or less informally with several Bar committees to move forward upgrades in practices, procedures and ethics rules, an immerse myself in learning all there is to know about the Bar's finances. If things follow the typical pattern, the next four or five years should be very interesting.

I just got word of a new example of deceptive claims practices in the insurance industry. A major insurance company is now  referring to its claims adjusters as "counselors."  When one calls the claims department, the recording says,  "All of our COUNSELORS are busy but someone will be with you shortly."  It appears the company is changing its nomenclature from "claim rep" (someone who will take advantage of the unrepresented) to "counselor."

A dictionary definition of "counselor" is:

coun·se·lor   /ˈkaÊŠnsÉ™lÉ™r/ Pronunciation Key - Show Spelled Pronunciation[koun-suh-ler] –noun

I've been in St. Louis for the past couple of days serving on the faculty of the first national continuing legal education program sponsored by the new Association of Interstate Trucking Lawyers of America.  As usual, I've learned more than I've taught.  After all, if I can give everyone one new idea, but 20 other speakers give me one new idea each, it's well worth the trip. This new organization of trial lawyers from coast to coast specializing in trucking litigation is an immeasurably valuable resource.

U.S. truckers are coping with the price increase as best they can by lowering speeds and using auxiliary power units when the truck is idling, but according to the latest edition of the Roemer Report, the CEO of the  American Trucking Associations  wrote to government officials, saying that “Even with these efforts, it is easy to see why many trucking companies are reporting that higher fuel prices have greatly suppressed profits, if they are making a profit at all. We are not only concerned about fuel’s direct impacts on our industry, but also its effects on the nation’s economy, which is likely to be in a recession.”

I continue to wonder about the implications of rising oil prices on the trucking industry in general, and trucking safety in particular.

If truckers are in distress, will they be more likely to cheat on hours of service, maintenance, etc., with the predictable impact on safety and bad incidents?

Will the same economic distress lead them to cut out excess insurance coverage and skip payment on insurance premiums? As long as there is an MCS-90 endorsement or a state Form E, etc., in place, we can recover on that. However, if they can’t maintain coverage, they can’t continue to operate.

The demise of small truckers will lead to consolidation in the trucking industry. Will the larger carriers do a better job in managing safety, reducing bad incidents? Or will they just do a better job of cheating, making it harder to uncover the bad stuff?

On Tuesday, May 27, at 11 am EDT, National Public Radio talk show host Diane Rehm will interview Susan Connors, Brain Injury Association of America president/CEO, and Michael Mason, author of Head Cases, the compelling compilation of individual stories of brain injury and its aftermath.

As an attorney representing people catastrophically injured in trucking accidents in Atlanta, Georgia, I see speed as a safety problem as well as fatigue, illness, medication and equipment deficiencies.

The  Federal Motor Carrier Safety Administration is studying a proposal for a uniform nationwide speed limit for interstate motor carriers. If adopted, it may help hold down the top speeds, but will not alone deal with speeds that are too fast for traffic and weather conditions.

State legislation introduced in the New Jersey Assembly would set a statewide 68 MPH speed limit for all trucks operating in that state. As written, the bill would require the retrofitting of any truck, regardless of its age, with devices to insure compliance with the state speed limit.  In Canada, proposed legislation in Ontario would require speed limiters on all trucks operating in that province.

The U.S.-based Truck Renting and Leasing Association (TRALA) has taken a position opposing both the New Jersey and Ontario proposals, urging instead that state and provincial governments await adoption of a uniform requirements for truckers operating throughout the US and Canada.