Our very own Render Freeman has been elected to the faculty of the American Association for Justice, an association he has been a member of since 2006. Congratulations Render!
Archive for the ‘Personal Injury’ Category
When I watch TV shows with my teenage boys, it drives me crazy that they are on their mobile phones, texting, Tweeting and Facebooking. We frequently have to back up the show when something funny or significant happens. Of course, when my wife and I suggest that they pay attention to the show, they strenuously argue, “I’m multitasking!”
Multitasking is the modern American way. Friends and colleagues frequently claim to be multitasking, as if bragging about their high efficiency. But decades of research by neuroscientists has definitively established that multi-tasking is a myth. Our brains are not designed to pursue two or three tasks at the same time. Our brains function best when doing a singular task.
The best example of this is texting and driving. You cannot give your full attention to the road in front of you and draft or read a text message. Surprisingly, the same is true of merely talking on your cell phone while driving, even if you’re using a hands-free device or Bluetooth through your stereo system. In fact, research has shown that driving a car while on your cell phone is the equivalent of being intoxicated. Sleights of Mind, What the Neuroscience of Magic Reveals about our Everyday Deceptions, Macknik, Stephen L.; Martinez-Conde, Susana; Picador ISBN 978-0-312-61167-5, 2011, p.87. www.sleightsofmind.com.
Neuroscientists refer to this principle as inattentive blindness. “We have to be aware that there is a cost to the way that our society is changing, that humans are not built to work this way,” says Russ Poldrack, a brain scientists at UCLA. “We’re really built to focus. And when we force ourselves to multitask, we’re driving ourselves to perhaps be less efficient in the long run even though it sometimes feels like we’re being more efficient.” Id, pp. 87-88.
Psychologists at Western Washington University conducted a fascinating experiment regarding inattentive blindness. They observed four categories of college students walking across the main campus square. One group was minding their own business and told to simply walk across the quad. A second group was walking in pairs and talking. A third group was listening to music on mobile devices. The fourth group was talking on cell phones. In each instance, a ridiculously costumed clown on a unicycle pedals in circles around the participants.
Which participants noticed the unicycling clown? The students walking in pairs were most likely to notice the clown. The students listening to music on their mobile devices were only slightly less attentive. Half of the students talking on cell phones entirely miss the unicycling class. Half! The cellphone users also walked more slowly, weaving as they crossed the square. Id., p. 86.
So if we are not going to notice a unicycling clown, we certainly are not going to notice the subtleties of the traffic patterns unfolding in front of us: the driver slowly decelerating, the car in front of us drifting into our lane or the commercial vehicle unexpectedly making a left turn into our lane.
Inattentive blindness is probably a factor in the vast majority of car accidents in metropolitan Atlanta, Gwinnett County and in counties all across Georgia. Multi-tasking drivers must be held responsible for the injuries they cause with their carelessness.
It is vitally important to retain a competent attorney to represent you in collision cases whether they involved 18 wheelers, other commercial vehicles or Passenger vehicles. Preserving and collecting the proof of cell phone usage in connection with car accidents is highly time sensitive. Cell phone providers only maintain data for a limited period of time. This data must be preserved, and in order to do so, you must put the at-fault driver and their insurance company on notice.
Have you notified all potential insurance carriers of your claim? If you’re unsure, then watch out! They may use that as a basis for denying your claim. A competent attorney can assist you in not only promptly notifying an insurance carrier of your claim but also of identifying all of the insurers that may be responsible for the injuries and losses you sustained. The following case serves as an example of how far an insurance company may go to try to avoid paying a claim:
In October 2004, a work supervisor asked Mr. Hoover, to deliver a ladder to a job site where a contractor was making roof repairs. Once there, Mr. Hoover courteously agreed to climb onto the roof and assist the contractor with his work. Tragically, after Mr. Hooper helped finish the work and was climbing off the roof, he fell to the ground and sustained a serious brain injury. Mr. Hoover’s brain injury led to a long hospitalization and expensive medical bills. As a result, Mr. Hoover obtained an attorney and filled suit against his employer and his employer’s insurance company in an effort to recover for his medical bills, lost wages, and pain and suffering.
The insurance company that was supposed to cover Mr. Hoover’s employer denied coverage and refused to defend the employer. The insurance company claimed that a certain exclusion listed in the policy allowed it to avoid paying the claim. At the same time, the insurance company tried to argue that there might also be additional exclusions that would allow it to avoid paying the claim if a court were to find that it’s first exclusion wasn’t legitimate.
Not to be discouraged, Mr. Hoover and his attorney proceeded to trial on their claim and were awarded $16.5 million in damages! To collect Mr. Hoover’s verdict, Mr. Hoover and his attorney appealed the decision of the trial court and Georgia Court of Appeals, which both held that the insurance company wasn’t liable. However, thankfully for Mr. Hoover, and injured victims across the state, the Georgia Supreme Court held that the insurance company was liable. Specifically, the Court held that the insurance company could not both (1) deny the claim and (2) try to reserve the right to argue other defenses later if its first reason for denying the claim was proven to be untrue. In other words, the insurance company had to take one position from the very start and then stick to it. Mr. Hoover’s case certainly goes a great way in illustrating an insurance company’s efforts to avoid paying a claim. Fortunately, in this case, the Court required the insurance company to actually provide insurance and pay for Mr. Hoover’s injuries.
Recently, an article published on a blog for attorneys suggested that the odds are against the injured plaintiff when going to trial – 61% to 39%. However, what the author fails to take into account is the experience level of the Trial Lawyer.
If these trial results were grouped based upon the experience level and training of the plaintiffs’ lawyers, I suspect that the results would be profoundly different.
In conducting this survey, the author should have asked the plaintiffs’ lawyers the following questions:
- “How many jury trials have you conducted on behalf of injured individuals?”
- “What is your Martindale-Hubbell Rating?”
- “What national seminars on jury psychology or jury selection have you attended?”
- “What memberships do you hold in local and national trial lawyers’ societies?
- “What’s your participation level in these local and national societies?”
- “What’s the last book you read on trial strategy?”
- “To what extent do you use jury verdict data in your case evaluations?”
And guess what? Clients should ask these same questions when considering which lawyer they should hire!
The skill level and experience required to obtain a personal injury verdict is grossly underestimated in our society. Perhaps this impression is due to the high visibility of lawyers that advertise on the back of the phonebook and TV. These hokey depictions of trial lawyers are far from the honorable and sophisticated Atticus Finch of To Kill a Mockingbird. Or, perhaps this impression is related to the relentless propaganda from the insurance industry about how juries are out of control. I’ve heard one defense lawyer describe representing an injury victim to be like picking up found money. Maybe that’s why so many profoundly inexperienced lawyers take these cases to trial and lose them.
An effective trial lawyer must be intelligent, articulate, presentable, organized, hard-working, compassionate and empathetic. But, above all else, a trial lawyer must believe in the cause; must believe in the societal importance of holding careless individuals and corporations responsible for the injuries and suffering that they inflict; and must understand that the ultimate goal is making our society a safer place to live, play and raise our children.
In many civil cases such as a trucking case, hospital malpractice or products liability, Georgia law requires that the Judge tell the jury that corporations are people too. Here is the precise language from the Pattern Jury Charges:
“You must consider this case as a lawsuit between persons of equal worth and equal standing in the community and between persons holding the same or similar positions in life. All persons stand equal before the law. In a court of justice, all persons are to be dealt with as equals. A business entity such as a corporation is regarded as a person in this instance.“
What do you think? Are corporations people too? How would this language affect your deliberations if you were a juror in Georgia and corporate wrong doing had severely injured or killed someone?
In car wreck cases in Georgia, the jury is not allowed to know whether or how much insurance the defendant has available to satisfy a verdict and judgment against him or her. However, jurors must be qualified as to whether they are shareholders, officers, directors or employees of the defendant’s insurance carrier, and, when it’s a mutual insurance company such as State Farm, jurors must also be qualified as to whether they or their family members are policy holders of the defendant’s insurance company.
Defendants get testy about this because they believe that the qualification of the jury as to the insurance carrier is a gaping loophole in the law that allows the jury to essentially be told that the defendant has insurance. In Park v Nichols, 2011 Ga. App. LEXIS 95, (Feb. 15, 2011), the defendant’s Insurer, Nationwide Mutual Fire Insurance Company was mentioned by name four times. First, the Trial Court pre-qualified the jury as to officers, directors, shareholders, and employers of Nationwide. Next, the Court asked if any members of the panel were policy holders of Nationwide. Then, the Court asked if any jurors were related by blood or marriage to a director, agent, shareholder, or employee of Nationwide. The defense team moved for a mistrial but the trial court refused. On appeal, the Georgia Court of Appeals agreed, holding that repeating the name of the insurer is appropriate in questioning the prospective jurors about their potential financial interest in the outcome of the case.
These rules essentially choose between the lesser of two evils. The alternative would be to allow a senior executive of Nationwide to sit on a jury in which one of his customers was being blamed for a wreck. Of course not.
Many defense teams also complain when the plaintiff asks about the employment background of the prospective jurors and specifically asks whether they or their family members work in the insurance industry. Georgia law permits these questions as well and for good reason. For example, if a prospective juror has been a Nationwide personal injury adjuster for forty years, the Plaintiff is entitled to know that information and to factor it in to her preemptive strikes. See Norfolk vs. Perkins, 24 Ga App 552 (1997) (holding that prospective juror’s insurance background was a legitimate rationale for plaintiff’s preemptory strike as non-race based rationale).
Lawrenceville, Ga January 20, 2012 1:30pm.
The allegations in the case included that the customer sustained serious injury, necessitation a 5-level cervical fusion, when he fell in a foreign substance at a Kroger grocery store. The trial judge struck Kroger’s answer and found it liable for the injuries sustained by the customer when evidence developed during discovery suggested that the Kroger employees had tampered with and destroyed video surveillence footage of the incident and had deliberately deceived the customer’s lawyer during the lawsuit. Thus, the jury was only charged with the duty to arive at a dollar figure that would compensate the customer for his injuries and permanent disability.
The Gwinnett County Jury also found that Kroger had been stubbornly litigious. Based on that factual finding, the judge sent them back to the jury room for a second round of deliberations. This time their job was to calculate the attorneys fees and expenses incurred by the customer and to reimburse him for those expenses. After about five minutes of deliberations, the jury awarded an additional 40% of its base verdict of $1.689 Million for a grand total of $2,364,600.
In Clark v. Rush, Case No. A11A1418 (Ga. Ct. App., Nov. 1, 2011), a Georgia Plaintiff was allegedly injured in a car wreck when Defendant pulled out in front of her. The Defendant argued the Plaintiff was speeding and was thus partly at fault for the wreck.
The trial judge gave the pattern jury instruction on comparative negligence. This charge instructs the jury that if it finds the plaintiff was at fault, but less at fault than the defendant, the jury is to reduce its award “in proportion to” the plaintiff’s negligence. But the jury was not given a special verdict form allowing it to specify the percentage of fault attributable to the plaintiff. Defendant’s attorney timely objected to the charge and the verdict form. The jury awarded Rush $20,000, and Defendant appealed.
The Court of Appeals agreed that the pattern jury instruction is now erroneous after passage of the Tort Reform Act of 2005. O.C.G.A. § 15-12-33(a) now requires the jury to assign a specific percentage of fault to the plaintiff, and, according to the Court of Appeals, requires a special verdict form whereby the jury allocates a specific percentage of negligence, so that the judge can reduce the award accordingly. The case was sent back for retrial.
Miss Jackie, a retired police officer, needed to get her oil changed. So she found a local oil-change shop near her home in Lawrenceville, Georgia. The technician escorted Miss Jackie into the lobby and pulled her car into the bay over an open oil pit.
As she sat in the lobby, Miss Jackie realized that she had forgotten to tell the technicians something important about her car. Unfortunately, there was no employee at the desk in the lobby, and the door into the workshop had a prominent sign stating “Employees Only.”
Miss Jackie chose to go into the workshop anyway. Luckily, her car was in the first stall, and the technician was right in front of her as she came through the door. Jackie told the technician about her car and then turned to go back into the lobby.
Before she could get back into the lobby, a second technician at the rear of the car called for her attention. “Your tail light is out,” he said. “Would you like me to replace it?”
Miss Jackie replied, “Sure, how much?”
“$3.50,” the tech replied.
That seemed like a deal to Miss Jackie. “Sure, but let me show you how to open my trunk; the key will jam if you don’t do it right.”
The technician led Jackie to the rear of her car. As the he rounded the corner, he stepped over the open oil pit in the floor, straddling it and continuing to converse with Miss Jackie. After years of working in shops like this one, the presence of the oil pit was intuitive to him. He could walk around this shop wearing a blindfold without falling in the pits.
Unfortunately, the presence of the pit was so instinctive to him that he forgot to warn Miss Jackie. She had been inside the lobby when they pulled her car into the stall and did not know that a large portion of the oil pit was open behind her car.
As she rounded the rear of her car, she continued to converse with the tech, making eye contact with him. She stepped forward with her left foot, but instead of coming to rest on the concrete, her foot met with the open air of the oil pit, and down Miss Jackie went. As she fell, she bounced off her car, off the edges of the oil pit and even the steel ladder leading down into the pit. Thank God, another technician, Kamal, was already in the pit, preparing to work on Jackie’s car. He caught Miss Jackie as she was careening toward the bottom of the pit. When he stopped her fall, Miss Jackie was upside down, looking at Kamal’s work boots and the steel-grate platform at the bottom of the pit.
While a more serious injury had been averted by good fortune and Kamal’s quick reaction, Miss Jackie was still in tremendous pain, having sustained serious personal injuries. Her right knee had struck the pit ladder, her shoulder was fractured in several places and her shoulder tendons had been shreaded. Jackie called her daugher and had her pick Jackie up and driver her to Gwinnett Medical Center in Duluth, Georgia.
Georgia’s Comparative Negligence Rule. Is Miss Jackie to blame for her fall? In this regard, her case is an excellent example of Georgia’s Comparative Negligence Rule. Rule #1. In Georgia, the jury must compare the fault of Miss Jackie with the fault of the defendant. If the jury were to decide that Miss Jackie was equally at fault for her injury (i.e., 50/50), the jury would be required under the doctrine of comparative negligence to return a verdict in favor of the defendant and award nothing to Miss Jackie. Rule #2. However, if the jury were to decide that Miss Jackie was not as much to blame as the defendant (for example, only 49% at fault), this doctrine would allow them to compensate her but would require them to reduce her compensation by the percentage of her fault – 49% in the example. This second rule applies all the way down to 1%; in other words, if the jury were to decide that Miss Jackie was 1% at fault, they would be required to reduce her compensation by only 1%.
In most other states, comparative negligence is not the rule. Many states would allow Miss Jackie to recover even if her degree of fault was 99%, but the jury would be required to reduce her recovery by that percentage. Thus, Rule #1 of Georgia’s Comparative Negligence Rule is nothing short of high-stakes poker. If it’s a close call on which party bears the most fault, Miss Jackie faces the risk that the jury will not compensate her at all.
Your Choice of Trial Attorney makes all the Difference. Overcoming Georgia’s comparative negligence rule presents a unique challenge to clients like Miss Jackie. How would the jury apply this doctrine to Miss Jackie’s case?
Experts believe that juries don’t fully understand the verdicts that they return. For that reason, Mr. Freeman regularly attends national conferences on both jury psychology and the art of persuasion. From the moment he is retained as your trial attorney to the moment your trial begins, Mr. Freeman uses this training to devise a trial strategy that will overcome the legal and factual obstacles you face such as comparative negligence.
Mr. Freeman’s Investigation of Miss Jackie’s case. After extensive investigation and discovery, Mr. Freeman prepared Miss Jackie’s case for trial. His deposition cross-examination of the repair shop technicians and their supervisors revealed that the technicians had violated numerous company safety polices on the day of Miss Jackie’s fall: (1) as soon as Miss Jackie stepped out into the workshop, she should have been escorted back into the safety of the lobby; (2) if it was necessary for Miss Jackie to be in the workshop, she should have been warned of the open pit; and (3) the technician should not have stepped over the pit or straddled it. These admissions of safety rule violations became the foundation for Miss Jackie’s claims that her fall was their fault, not hers.
In addition, Mr. Freeman strategized that the defendant’s failure to have an attendant present in the lobby was the dominant cause of Miss Jackie’s fall. If the defendant had chosen instead to fully staff its oil-change facility, Miss Jackie could have conveyed the important information about her car to the attendant and never would have been confronted with the choice of entering the shop and ignoring the “Employees Only” sign on the shop door.
Depositions of corporate officers revealed that surveillance cameras had captured Miss Jackie’s fall but that the footage had not been preserved. This failure on the part of the defendant triggered the doctrine of “spoliation of evidence.” Because the defendant knew of the video evidence; knew of Miss Jackie’s fall; knew that the video would be useful to the plaintiff in proving her case; but allowed it to be automatically destroyed by the surveillance system after thirty (30) days, Georgia law permitted Mr. Freeman to request that the judge instruct the jury on the law of spoliation of evidence. This jury instruction provides that the defendant’s destruction of the video evidence gives rise to a presumption that the evidence would have been helpful to Miss Jackie’s case and that it was destroyed to cover up the defendant’s negligence.
After Mr. Freeman completed his investigation, he aggressively pursued an early trial date, and, at the same time, invited the defendant to pursue settlement of Miss Jackie’s case through non-binding mediation. With a trial date looming over the heads of the defendants and their insurers, the parties engage in hours of negotiations and argument in the presence of a neutral mediator. At the end of the day, the defendant and its insurance company agreed to settle Miss Jackie’s case by paying her $180,000.